Tuesday, February 20, 2024

JOTWELL: Thomas on Frampton on jury integration

The new Courts Law essay comes from Suja Thomas (Illinois) reviewing Thomas Frampton, The First Black Jurors and the Integration of the American Jury, ___ N.Y.U. L. Rev. ___ (forthcoming 2024).

Posted by Howard Wasserman on February 20, 2024 at 02:42 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Thursday, February 15, 2024

Jurisdictional confusion never goes away

This decision from the District of Delaware has everything from every class I ever teach 8 pages from a frivolous case--courts with Eleventh Amendment immunity, judges with judicial immunity, § 1983 claims against private actors, absence of a private right of action, incomplete diversity, declination of supplemental jurisdiction, and perhaps Rooker. Everything. The case seems to be an elderly couple lashing at after their adult children moved them off of some property.

The case caught my attention because of footnote 1. After dismissing for failure to state a claim the claims against several private individuals (family members, two private practice attorneys, a law firm, a legal aid organization, and the electrician who cut off the power to their property) for lack of action under color, the court drops this footnote:

See Itiowe v. Trentonian, 620 F. App’x 65, 67 n.2 (3d Cir. 2015) (per curiam) (noting that dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction may be appropriate where a plaintiff brings constitutional claims against non-state actors without plausibly alleging that they acted under the color of state law); see also Hagans v. Lavine, 415 U.S. 528, 536-37 (1974).

Jurisdiction/merits confusion will never go away. State action/under color presents one of the early examples of conflation (along with Title VII's numerosity requirement) and an easy case for merits treatment. One of my early cases clerking on the Eastern District of Pennsylvania involved a defense 12(b)(1) motion for lack of state action* and us writing an order instructing the parties to treat this as a merits/12(b)(6) issue, citing a published opinion from Judge Becker on the Third Circuit. How much we forget. Or it is continued malign influence of Bell v. Hood, under which courts find lack of jurisdiction if an otherwise obviously federal claim is sufficiently weak. See also Judge Newsom's take.

[*] I don't recall all the details and we did not publish anything. But the case arose from an assistant DA assaulting a defense attorney in open court. I used it as a class problem for years--how seriously should we take the idea of a state position "enabling" conduct for under color purposes?

Posted by Howard Wasserman on February 15, 2024 at 12:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Fifth Circuit and favorable termination

I wrote in December about the Fifth Circuit decision in Wilson v. Midland Cty., about the application of Heck to a claim by a woman convicted of crimes in Texas where an ADA was moonlighting as the judges' law clerk. Judge Willett's panel opinion held the claim Heck-barred because Wilson was no longer in custody (she completed her sentence a decade ago), while decrying the injustice of the result.

The court granted rehearing en banc and scheduled argument for May. As I wrote, there is a circuit split on whether Heck applies to a person who no longer is in custody. No matter the result here, the issue seems to be teeing up for SCOTUS resolution.

Posted by Howard Wasserman on February 15, 2024 at 09:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, February 10, 2024

Thoughts on the disqualification case

• The prevailing wisdom seems to be reversal on the ground that states lack the power to adjudicate eligibility, at least without congressional approval. Many of the exchanges about that lack of power took a procedural focus--the process by which state courts would do this; differing evidentiary rules and standards of proof; the risk of disuniformity; the absence of federal control; etc.

None of these is real--or at least each is answerable and resolveable. But the justices never seemed inclined to hear those resolutions. Consider:

    • Disuniformity can arise in any adjudication in any court system in any posture, unless the Court exercises original jurisdiction over all cases, which it cannot and will not do. But we could get disuniformity from one process the justices accepted--prosecution for insurrection. Imagine Trump committed separate allegedly insurrectionary acts--January 6 and, then after leaving office, he pulls an Aaron Burr. That prompts separate prosecutions in separate federal districts in separate circuits, perhaps under different interpretations of the rules of evidence--and perhaps disuniform rulings as to his eligibility. (Admittedly slightly different because it is two distinct insurrectionary acts--but we could imagine a link between the two or a single conspiracy with acts in two places).

    • SCOTUS exists to resolve disuniformity. But the Court demurred from control over this issue contra most other current legal issues. And it did so in a way that placed the plaintiffs and states in a catch-22. An exchange between Justice Barrett and Jason Murray illustrates. Barrett expressed concern for being stuck with the record from the lower court; Murray responded that the Court could adopt independent factual review as it does under New York Times and for other "constitutional facts;" Barrett replied by complaining about having to decide without deference from lower-court fact finding. Which is it--SCOTUS must control the lower courts or SCOTUS must have lower courts to defer to? We could find a similar solution to Justice Alito's concerns for different evidence and proof rules--NYT dictates, as a matter of substantive constitutional law, the standard and burden of proof for defamation. Why not for § 3?

    • A system in which constitutional enforcement occurs in courts must account for enforcement mechanisms. Nothing "just happens." Accepting that the "self-executing" nature of § 3 means Trump became ineligible as soon as he engaged in insurrection (as Murray argued), that ineligibility still must be enforced through some mechanism. And, Murray argued, the only available mechanism once someone occupies the office is impeachment (accepting, from Griffin's Case, that collateral attacks on presidential action are impossible). But Gorsuch would not hear it, insisting that is a separate question. But that separate question is one of the issues at the heart of the case--how to enforce § 3.

• The President is a national officer. But he is not selected nationally--he is selected by some combination of 50 states and D.C., potentially through 51 selection mechanisms. I have not heard a good argument for why § 3 is different from other things states can consider and use to control ballot access and selection of federal offices, including the presidency.

• An unfortunate narrative has developed about "how could all these supposedly brilliant law professors have been wrong." Most legal scholarship is normative rather than predictive--scholars do not predict what the Court will do, they write about what the Court should do and what the law should be. That the Court disagrees does not make the  scholars "wrong" and the Court "right," other than in the (Robert) Jacksonian sense in which infallibility follows from finality and from actually having power to impose their constitutional views on others.

Posted by Howard Wasserman on February 10, 2024 at 06:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, February 08, 2024

Erie and litigation finacing in Florida

The Florida legislature is considering legislation that would, among other things, require automatic disclosure of financing agreements. Wisconsin enacted a similar law in 2018 and I wrote about the Erie issues it creates in federal court. Same issues and analyses arise here. Florida adds another wrinkle: Disclosure must be made within 30 days of commencing the suit, as opposed to as part of the discovery process. I have used this as a puzzle in the Erie part of Civ Pro for the past few years; now I have a local hook for it.

One additional question: Is there an equal protection or First Amendment problem in that the Florida law only applies to financing agreements for which the financier will receive some cut of any settlement or judgment. It does not apply to those--such as Elon Musk financing Gina Carano's suit against Disney over her firing from The Mandalorian or Peter Thiel and Hulk Hogan's suit against Gawker--who do not expect a return on their financing and do so for some personal or political goal. I suppose the answer depends on the purpose of the rule and how much an uncompensated funder can influence a litigant's decisionmaking. (Hogan declined lucrative settlement offers from Gawker; some argue that Thiel's funding removed Hogan's ordinary litigation incentives and strategies).

Posted by Howard Wasserman on February 8, 2024 at 09:43 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, February 06, 2024

Reining in the lower courts

The Tenth Circuit rejected a Bivens claim against U.S. Marshals who beat a man unconscious outside his home while executing a warrant. The Court noted, but did not rely on, the fact that the plaintiff was assaulted outside his home, whereas officers attacked Bivens inside his home. The Court relied on the differences between deputy marshals and ATF agents and the availability of USMS grievances against the officers. The case reveals how absurd Bivens has become. And the court uses language that seems to acknowledge that absurdity while blaming SCOTUS for forcing lower courts to reach such absurd results.

SCOTUS often grants cert to pull lower courts back into line when decisions get to far afield, even if SCOTUS forced them there through its decisions and the language of its decisions. That is, SCOTUS pulls lower courts back when they take the doctrine too far, even if the lower courts' decisions reflect natural extensions of SCOTUS precedent. Some cases allow the Court to say "we didn't mean that." This arguably explains Taylor v. Riojas, where the Court held (in a summary reversal) that leaving a prisoner in a cold, barren, feces-strewn cell obviously violated the Eighth Amendment without precedent. It arguably explains HHC v. Talevski, where the Court ensured of the continuing vitality of  § 1983 "and laws" actions.

Might the Court take this case or a similar case--in which the basic logic is "no Bivens claim because this guy is not named Bivens"--to pull back from the worst nonsense? Or is Bivens so doomed that the Court's next move will be to overrule it?

Posted by Howard Wasserman on February 6, 2024 at 03:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, February 05, 2024

JOTWELL: Pfander on Beswick on Canada's approach to governmental accountability

The new Courts Law essay comes from James Pfander (Northwestern) reviewing Samuel Beswick, Equality Under Ordinary Law, 106 Sup. Ct. L. Rev. (forthcoming 2024), comparing Canada's constitutional tort system with the mess in the United States. As Jim notes at the bottom and to coin a phrase, "Poor Robert Boule."

Posted by Howard Wasserman on February 5, 2024 at 11:38 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, January 20, 2024

Every animal who, under color . . .

Fun case from the Eighth Circuit: Whitworth v. Kling (8th Cir.), arising from a K-9 (named Dutch) biting a guest in his off-duty handler's house. The court rejected a Fourth Amendment unreasonable-seizure claim against the handler, because the bite was unintentional and not part of the officer's official efforts. The court treated the K-9 as the officer's weapon used to engage in force--in this case, the sort of unintentional force that does not violate the Fourth Amendment.

But the court ignored two other paths to the same result.

One is that Dutch did not act under color because he did not pretend to perform his official duties----he was playing fetch in his yard off-duty, got distracted, and ignored commands to disengage--or use his position to enable his conduct. That is obviously silly. Section 1983 precludes that approach--"[e]very person" under color. And cases treat K-9s as an officer's tool rather than as the officer. But the thought is fun. And consistent with my use of the pleadings in Naruto v. Slater (the "monkey selfie" case) in Civ Pro.

Another path is that the officer--off-duty, playing fetch in the yard, and not attempting or appearing to perform any job-adjacent acts through Dutch--did not act under color. The dog bite is analogous to an off-duty officer's service revolver accidentally discharging and injuring a visitor to his house. I wonder why the court did not pursue this.

Posted by Howard Wasserman on January 20, 2024 at 05:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Friday, January 19, 2024

The law of Trump and easy cases

I mentioned previously that people have proposed classes on "Law of Trump"--a discussion of the many, many legal issues that have arisen in litigation involving Trump and those in his orbit. A lot of it has touched on Civ Pro and Fed Courts, hence my interest.

Much of the Law of Trump involves not new law, but easy application of established principles, applied to a new, often-unprecedented context receiving outsized attention. Take Clifford Frost, one of Trump's fake Michigan electors, now facing eight state felonies over the scheme. Frost filed a federal action to enjoin the prosecution, although he does not assert a constitutional defense; he recasts a sufficiency-of-the-evidence defense as a 14th Amendment violation and as bad faith. This was, and should be, an easy case for Younger abstention.

Posted by Howard Wasserman on January 19, 2024 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Koppelman on the Colorado cake wars

Andy Koppelman writes about Autumn Scardina and her lawsuit against Jack Phillips and Masterpiece Cakeshop (pending before the Colorado Supreme Court). Koppelman criticizes Scardina for "provok[ing] pointless fights" and offering the Court an opportunity to impose vague-but-bad expansions of free speech or limits on antidiscrimination law.

I have written about this lawsuit here and in our private-enforcement articles. Scardina's litigation demonstrates the commonality ubiquity, and liberal acceptance of defensive constitutional litigation. Like abortion providers and advocates under SB8, Phillips was forced to refuse to bake the cake, get sued, and assert his federal constitutional rights as a defense to liability in state court (so far unsuccessfully).* Unlike with abortion providers and advocates, liberal academics and advocates did not complain about the process or argue that the procedural posture of this case denied the federal courts the opportunity to engage in judicial review or Phillips the opportunity to vindicate his constitutional right.

[*] Colorado's civil rights law mixes public enforcement through the Civil Rights Commission and private enforcement through civil litigation. The Civil Rights Commission began proceedings against Phillips on Scardina's complaint; it dismissed that effort when Phillips brought a federal action to enjoin the proceeding and the federal court declined to abstain, citing Younger's bad-faith exception. Scardina then filed suit in state court.

But there is more to this. Rocky and I are working on piece # 5 in this series on private enforcement, arguing that public accommodation laws and "expressive products" offer the Blue-state counterpart to SB8 and the opportunity for a campaign of actual or threatened litigation to undermine constitutionally protected-but-locally unpopular right-wing conduct of refusing to provide certain products for certain customers. And this context is easier SB8 and other recent Red-State efforts--anyone can order a cake with a simple phone call (or many cakes with many phone calls). Koppelman's objection to Scardina's campaign (he calls it "reprehensible") shows why Blue states are unlikely to take this step. Koppleman is a liberal who believes in balancing LGBT+ rights and religious liberty. He, and other Democratic officials, may not want open legal warfare.

Posted by Howard Wasserman on January 19, 2024 at 10:31 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 17, 2024

JOTWELL: Mullenix on Lammon on finality

The new Courts Law essay comes from Linda Mullenix (Texas) reviewing Bryan Lammon, Manufactured Finality, 69 Vill. L. Rev. (forthcoming 2024) on parties manufacturing finality through voluntary dismissals and other moves.

Posted by Howard Wasserman on January 17, 2024 at 09:47 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 03, 2024

A new Bivens Catch-22

After federal officials attempted to strip Michael Cohen of his home confinement and placed him in solitary confinement in retaliation for his public statements, Cohen obtained habeas relief. He then sought Bivens damages against Donald Trump, Bill Barr, and a bunch of officials in the corrections system. The Second Circuit affirmed dismissal of the Bivens action, to no one's surprise (except perhaps Cohen and his attorneys)--this is a new context (because the cause is not called Bivens or Carlson) and there are always special factors counseling hesitation. The court relied on the special factor or availability of alternative remedies--the habeas relief that Cohen sought and received.

But note the double work habeas does here. Because Cohen challenged, in part, the terms of his sentence (imprisonment rather than house arrest), a successful damages claim would have implied the invalidity of that part of the sentence. Such a claim is Heck-barred unless he can show "favorable termination" of the criminal proceedings, such as through habeas relief undoing the sentence. But his success in satisfying that preliminary requirement to pursue damages means he has no Bivens claim at all. On the other hand, had he failed in obtaining habeas relief, he might have been able to pursue the Bivens action, only to find it Heck-barred because he failed to show favorable termination.

Posted by Howard Wasserman on January 3, 2024 at 09:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 21, 2023

Shifting narratives on antisemitism

I watched the HBO documentary No Accident, chronicling the civil conspiracy trial against Jason Kessler, Richard Spencer, and other organizers of "Unite the Right"  in Charlottesville. The jury found the individuals and groups liable for civil conspiracy under Virginia law but hung on civil conspiracy under federal law; the court reduced an award of (mostly punitive) damages of more than $ 24 million to about $ 2.35 million, given Virginia-law limits on punitive damages. I am considering holding a "Civil Litigation Night at the Movies" next semester, given how the case touches on every class I teach--Civ Pro (lots of stuff about discovery), Evidence (a detailed look at trial and how lawyers prove facts), and Civil Rights (the case began with a focus on a provision of the KKK Act of 1871, although that is not where things landed).

The film highlights some Jewish themes--Roberta Kaplan's Passover Seder, an information session at a New York City temple, discussions (in 2019) of increases in antisemitism, explanations of  "white replacement theory" and Jews' roles in that. But I was struck by how outdated those discussions of antisemitism felt and how much the conversation around antisemitism has changed in the past two months. Now  Republican such as Elise Stefanik are calling out antisemitism in the mainstream media, while making common cause with the villains in this movie. I do not mean to oversimplify--left-wing antisemitism existed in 2017 (e.g., efforts to exclude Jewish organizations from the Women's March and Gay Pride programs) and right-wing antisemitism has not disappeared. But the narrative changed very quickly. Or it vindicates Tom Lehrer.

Posted by Howard Wasserman on December 21, 2023 at 03:35 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, December 18, 2023

The Times, Dobbs, and SB8

The New York Times had a big piece Friday on the behind-the-scenes events leading to Dobbs. I want to comment on SB8's cameo in the story.

The piece describes the SB8 case as the beginning of the fall of Roe and the failure to stay enforcement before the law took effect as the point at which "Roe was partially undone." I saw one surprising bit in this section--that Justice Gorsuch was incommunicado except through Justice Alito on the evening of August 31 (the law took effect at midnight September 1). He expressed no view until the next day (which Alito relayed to the rest of the Justices), then voted to deny any injunction the following day. Beyond that weirdness, everything the Justices said in internal memos (as quoted in the Times) appeared in the opinions in the stay order--Roberts' view that the existence of the law might create an independent violation and Justice Sotomayor's view that it was a "pity that we cannot do the right thing."

The problem with giving SB8 a meaningful role in the drama leading to Dobbs is that the outcome of the case should have been obvious. The Court had never said the mere existence of the law violates the Constitution independent of enforcement. The Court cannot stop the law from taking effect, because the Court cannot enjoin a law, independent of its enforcement. And the Court could not, in a § 1983/EpY action, enjoin unknown private actors from doing anything. All of this should have been obvious when the private case reached the Court.

Posted by Howard Wasserman on December 18, 2023 at 12:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, December 15, 2023

Favorable termination and miscarriages of justice

Case out of the Fifth Circuit, written by Judge Willett, on Heck v. Humphrey and the so-called Heck bar or habeas exception to § 1983:

A former county ADA in Texas moonlighted for two decades as law clerk to the judges of that district. He was discovered in 2019 and disbarred. Erma Wilson was convicted of cocaine possession in 2001 and received an 8-year suspended sentence. Wilson learned about the conflict when a capital conviction was overturned on habeas (she was not among the many people who received written notice from the DA about the conflict) and brought a § 1983 action, more than two decades after her conviction and more than a decade after completing her sentence.

Heck precludes § 1983 damages actions that would functionally call into question the validity of a conviction or sentence; habeas provides the sole federal vehicle for challenging state convictions. A § 1983 plaintiff must show "favorable termination" as an element of her claim. The problem arises when, as in Wilson, an individual no longer is in custody and thus cannot challenge the conviction or sentence through habeas. The Heck majority adopted favorable termination as an absolute rule. Justice Souter concurred in the judgment to argue that favorable termination should apply only at the "intersection" of habeas and § 1983, where both vehicles might be available; it should not apply when habeas is unavailable because the plaintiff no longer is in custody. Souter illustrates with a hypo that basically matches this case--a procedurally compromised conviction where the person does not learn about the compromise until after his release from custody. In Spencer v. Kemna, five Justices in three separate opinions adopted that position. This precipitated a circuit split--five circuits, including the Fifth, hold that Heck always applies; six allow for some exceptions; the answer depends on whether lower courts can count noses to find binding precedent or whether SCOTUS creates binding precedent only through a single majority opinion. Because the Fifth Circuit requires favorable termination, Wilson's claim was Heck-barred.

Judge Willett was outraged. He described the conduct and the outcome as "utterly bonkers," "difficult to explain," "hard to take in," and "underscor[ing] that the American legal system regularly leaves constitutional wrongs unrighted." He footnotes the last with references to prosecutorial immunity, Monell, and qualified immunity, stating "Upshot: Many Americans’ rights are violated but not vindicated."

Two questions of interest going forward:

1) What happens next. Willett emphasizes that the en banc court or SCOTUS could overrule its precedent on this point. Which avenue will and should the plaintiff pursue?  En banc Fifth Circuit review (and overruling) allows Wilson to avoid Heck and pursue her claim. But it does not resolve the broader circuit split; even if the Fifth Circuit changes its position, five other circuits continue to deny relief to plaintiffs in Wilson's shoes.* Much depends on what Wilson and/or her attorneys want to achieve--a remedy for her in this case or a broader change in the law. I guess this case may offer an interesting example of the occasional gap between cause lawyering and individual representation.

[*] The Seventh Circuit went the other way--it moved to the  "Heck applies" position in 2020 after years of allowing plaintiffs to avoid Heck where they diligently pursued the federal issues diligently and lost the opportunity to pursue habeas through no fault of their own.

2) Wilson's Other Options. The court fails to mention that Wilson had other options or whether she attempted to take advantage of them. Heck lists several ways to obtain favorable termination, including where the conviction has been "expunged by executive order, [or] declared invalid by a state tribunal authorized to make such determination." Lower courts have held the former to include pardons and executive clemency, at least where the pardon makes clear the basis and why it reflects favorable termination. Did Wilson seek a pardon? Alternatively, did she ask the state trial court to vacate the conviction? Neither the complaint, magistrate report, district court opinion, or Fifth Circuit opinion say so. Either would provide the needed favorable termination, mooting the question in this case of when favorable termination applies.

From the standpoint of § 1983's history, those options are unacceptable because they require plaintiffs to rely on state-law processes, whereas § 1983 reflects congressional distrust of state courts and state institutions; Souter makes this point in his Heck concurrence. At least in this case, however, I would expect even Greg Abbott to be receptive to a pardon; the optics and politics seem obvious.

Posted by Howard Wasserman on December 15, 2023 at 03:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 14, 2023

JOTWELL: Smith on Ahdout on the Court's role in separation of powers

The new Courts law essay comes from Fred O. Smith, Jr. (Emory), reviewing Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360 (2023), considering how the Court's role as a participant in separation-of-powers disputes affects the doctrine.

Posted by Howard Wasserman on December 14, 2023 at 01:09 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Monday, December 11, 2023

Rules Enforcement v. Rules Advisement

Here is a good one for the next edition of Berman and Friedman's The Jurisprudence of Sport:

The Kansas City Chiefs had nullified what might have been a game-winning touchdown on pretty great catch-run-and-lateral because a Chief receiver (the guy who scored the TD) lined-up offsides. (Photo and video in the linked story). Chiefs Coach Andy Reid and quarterback Patrick Mahomes were irate about the call after the game (this followed a loss last week in which a non-call on pass interference cost the Chiefs a meaningful chance to tie the game in the closing seconds). The outrage surprised me because (check the photo) the illegal formation is so blatant and obvious. And the official threw the flag as the play began, so he could not have known what would follow or what he was taking away. It could be a let-'em-play situation--under 2:00 in a 3-point game between potential Super Bowl contenders. But I never thought of offsides as a ticky-tack call akin to a foot fault or three-second violation on which refs swallow their whistles. (Compare that with, going back to the Chiefs, refs not calling PI on a hail Mary at the end of last week's game). Maybe offensive offsides (where the players gains a few inches down the field) is different from a defensive player jumping the snap.

It turns out Reid and Mahomes had a different complaint: The officials failed to follow their ordinary practice of advising offensive players, especially receivers, when they line-up offsides and giving an opportunity to correct. The ref explained that the receiver never looked to the official on the sideline for advice and that he was so far over the line that he blocked the view of the ball. The official was helpless--a blatant infraction and no opportunity to follow the soft practice and correct it; the practice does not include the official identifying the problem for the player.

These sorts of "warning" systems offer an interesting insight into how sports rules operate, especially with how officials avoid what are proceed as ticky-tack violations and ensure the players "decide the game." We can distinguish two types of "warning" systems. This one works on request--the player looks to the official for a preliminary ruling to ensure compliance before the official can make a formal call, but the official is not expected to warn the player sua sponte. For others, the ref is in constant communication with the player, without awaiting that request. For example, NBA refs constantly talk to players jockeying in the post about the 3-second violation, warning them to step out of the line when it gets close (which is really at 5 seconds rather than 3). Batters and umpires did a similar dance for years over delays in getting into the box, with the umpire reminding the player about speeding it up when necessary; MLB switched to a formal clock in 2023 when that informal warning system proved ineffective at furthering the policy of moving the game along. It might be interesting to explore which practices develop for which rules and why. The latter cannot work with the offsides call at issue in the Chiefs game--a football field is too large and too loud.

I am trying to think of legal-system analogues to this sort of pre-ruling advice. One is how judges (sometimes) treat pro se civil litigants, advising them on how to proceed and how to correct pleading defects. Another is the informality of discovery, where some judges encourage informal communications between chambers and lawyers and how discovery should proceed, especially when disputes or deadlines arise. And we see that distinction at work--the judge reaches out to help pro se litigants, while the judge still waits for parties to reach out on discovery issues, even if the judge will resolve them without a formal ruling.

Posted by Howard Wasserman on December 11, 2023 at 03:10 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, December 05, 2023

Court dumps tester case

On mootness grounds in a 3+-page opinion from Justice Barrett; the court vacates the lower-court judgment under Munsingwear.  The interesting stuff is two opinions concurring in the judgment.

Justice Thomas argues that the plaintiff lacks standing and, because standing is antecedent to mootness, the Court should resolve the case on that basis. His standing analysis--whether intentionally or not--illustrates why this is all merits. Thomas repeatedly describes standing as being about legal rights: " To have standing, a plaintiff must assert a violation of his rights;" plaintiff "lacks standing because her claim does not assert a violation of a right under the ADA, much less a violation of her rights." But the Court describes standing as being about injury, not legal right; standing asks whether plaintiff suffered an injury, while the merits consider whether he has a right under some legal source and whether that right was violated. Fletcher's essential insight, which Newsom carries forward, is the impossibility of separating the tww--one cannot suffer an injury unless a legal right attaches to it. I think either would say, on a clean slate, Laufer loses because she does not have a right to information under the ADA and thus loses on the merits. Is Thomas moving towards that view?*

[*] The injury/right separation becomes clearest for third-party standing--the plaintiff suffered an injury while some third party suffered a violation of her rights. Of course, Thomas rejects third-party standing.

Justice Jackson concurs in the judgment to argue that the Court grants Munsingwear vacaturs too automatically, although she agrees with vacatur here because the plaintiff--the victor below--unilaterally caused mootness. Jackson would ratchet up the burden on the party seeking vacatur to show a specific harm beyond disagreement with the lower-court judgment. There is no right to appellate review and the lower-court judgment--valid and binding and precedential when rendered in a live action--is entitled to a presumption of correctness and value that warrants its continuation.

Posted by Howard Wasserman on December 5, 2023 at 09:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, December 01, 2023

JOTWELL: Vladeck on Katz and Rosenblum on legal history in the courts

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Andrea Scoseria Kata & Noah A. Rosenblum, Removal Rehased, 136 Harv. L. Rev. F. 404 (2023), showing that the historical record as to the President's removal power is not as certain as judges and scholars (including Aditya Bamzai,Saikrishna Bangalore Prakash, to whom their essay responds) suggest.

Posted by Howard Wasserman on December 1, 2023 at 10:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 22, 2023

PJ as a chilling tool

I wrote earlier this month about the Tennessee lawsuit against Kathy Griffin and how the many who believed personal jurisdiction was lacking allowed their substantive views to affect their jurisdictional views. It was possible, of course, that forcing a speaker to defend nonsense defamation claims in a distant forum adds to the chilling effect and the goal of silencing speakers.

Thank goodness Elon Musk and Twitter (never X) can illustrate the point with this tortious interference lawsuit in the Northern District of Texas against Media Matters and reporter Eric Hananoki, over an investigation into Twitter allowing ads to run next to antisemitic content, after which several major advertisers withdrew (for the moment) from Twitter.

Twitter is a Nevada corporation with its principal place of business in California. Media Matters is a D.C. not-for-profit with its PPB in D.C. Hananoki is a Maryland citizen. The speech was directed to the world via the MM website and other online and traditional media outlets. The complaint identifies several advertisers who withdrew, none incorporated or having PPB in Texas. The best it can do is that many Twitter users are in Texas and many of the advertisers do business in Texas. Unless they have something else, that will not cut it--there was no "Texasness" to the Media Matters report or to any criticism of Twitter. This is what speech-chilling personal jurisdiction in a speech-chilling BS lawsuit looks like.

Putting a cherry on this as a Civ Pro exam: The Fifth Circuit has held that state anti-SLAPP statutes do not apply in federal court, whereas the Ninth Circuit holds that California's statute does apply in Federal Court.

Posted by Howard Wasserman on November 22, 2023 at 01:17 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, November 20, 2023

JOTWELL: Campos on Marcus on non-US discovery

The new Courts Law essay comes from Sergio Campos (BC), reviewing Richard Marcus, The Magnetic Pull of American Discovery: Second Thoughts About American Exceptionalism, in Processo Civile E Costituzione (Augusto Chizzini et al., eds., Giuffrè Francis Lefebvre 2023), which argues that discovery outside the United States looks a lot like U.S. discovery, despite assumptions that the U.S. is unique (and crazy).

Posted by Howard Wasserman on November 20, 2023 at 03:08 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Friday, November 17, 2023

A standing problem?

The University of Florida chapter of Students for Justice in Palestine, represented by the ACLU, has sued Ron DeSantis, Florida State University System Chancellor Raymond Rodrigues , UF President Ben Sasse, and the UF, and moved for a preliminary injunction. The complaint alleges that Rodrigues, on DeSantis' command, ordered all state universities to deactivate any recognized SJP chapters (USF and UF have chapters). The complaint adds that DeSantis promoted this idea during a recent GOP debate. The complaint does not allege that UF has, at this point, done anything in response to that order.

As structured, this creates a bit of standing (or is it ripeness--who the hell knows) puzzle. Rodrigues' order is not self-enforcing; it does not, of its own force, deactivate UFSJP and thus does not, of its own force, injure UFSJP, meaning Rodrigues does not injure UFSJP. How would an injunction against Rodrigues help UFSJP--perhaps by ordering Rodrigues to withdraw the order? The connection between DeSantis and UFSJP is more remote.

UFSJP's injury arises from UF deactivating it or threatening imminently to deactivate it, something UF has not done or even moved to do. The court could (and probably will) find that the order that chapters "must be deactivated" creates the necessary imminence--the order says UF must do this and UF cannot ignore that command, meaning it will, likely soon, take steps to deactivate. (Much as courts allow plaintiffs to file pre-enforcement challenges before an enacted law's effective date). But, taking the "doctrine" seriously, it is not an easy question. It certainly demonstrates the challenges and necessary precision for plaintiffs in framing these cases.

Posted by Howard Wasserman on November 17, 2023 at 10:48 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, November 16, 2023

Kavanaugh and Barrett on universality

SCOTUS refused to stay an injunction prohibiting enforcement of Florida's anti-drag law; Justices Thomas, Alito, and Gorsuch dissent.

Justice Kavanaugh, for himself and Justice Barrett (mostly) issued a statement respecting denial of the stay. It says in relevant part:

Rather, for purposes of its stay application, Florida challenges only the scope of relief ordered by the District Court—namely, that the injunction prohibits state enforcement of the law not only against Hamburger Mary’s but also against other entities that are non-parties to this litigation. To be clear, if this Court, for example, were ultimately to affirm the District Court’s First Amendment judgment on the merits, the State could not successfully enforce this law against anyone, party or not, in light of stare decisis. But district court judgments do not have that stare decisis effect. And the State here contends that the District Court otherwise lacked authority to enjoin the State from enforcing the law against entities other than Hamburger Mary’s. Therefore, the State says that it should be able to enforce the law against those non-parties during the pendency of its appeal.

No federal statute expressly grants district courts the power to enter injunctions prohibiting government enforcement against non-parties in the circumstances presented in this case. The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future. But the issue arises here in the context of a First Amendment overbreadth challenge, which presents its own doctrinal complexities about the scope of relief.

I argued that the district court messed up the scope-of-injunction analysis. In particular, this was not a proper case for overbreadth, which Kavanaugh sees as the reason this case does not present the proper vehicle. Nevertheless, credit for recognizing that stare decisis provides the prospective non-party effect of this decision, whether binding or persuasive.

The opinion adds a footnote, which Barrett does not join, distinguishing enjoining enforcement of statutes and setting aside agency regs under the APA.

Posted by Howard Wasserman on November 16, 2023 at 10:37 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, November 04, 2023

Substantive frivolousness and jurisdictional frivolousness

The Sixth Circuit held Friday that there is personal jurisdiction in Tennessee in a defamation suit against comedian Kathy Griffin over her tweets about Samuel Johnson, who was recorded harassing a prom-bound LGTBTQ student. The court found jurisdiction on three key facts:Griffin tagged and addressed some tweets to the Board of the Tennessee-based health-care company of which Johnson was CEO, urging that he be fired and and removed from the board (the claim is for tortious interference with employment and IIED); the tweets focused on the Tennessee-based activities of a Tennessee citizen and his continued employment in Tennessee; and she relied on a video of a video of the incident produced in Tennessee. The court distinguished precedent rejecting PJ in a case arising from Griffin's Twitter activities over the Nick Sandmann incident in 2019.

The First Amendment community took an unusually strong stance on the PJ issue in this case. (Griffin spoke about the case, including jurisdiction, on an episode of the Slandertown podcast). But personal jurisdiction seemed obvious in this case. The plaintiffs, and First Amendment commentators, emphasized the Sandmann cases. But the court rightly distinguished precedent, where the relevant events occurred outside Kentucky and the statements about the case went to the world; given the absence of "Kentucky-ness" over the coverage, I doubted Kentucky courts would have jurisdiction before anyone filed suit. Here, on the other hand, the people, events, and consequences of this case were entirely in Tennessee; the only things outside Tennessee were Griffin and many (probably most) of her Twitter followers. The case possessed that "Tennessee-ness" necessary for the effects test.

I wonder if the First Amendment folks conflated substance and procedure. They view the case as frivolous, because Griffin's statements were some combination of true, opinion, and hyperbole that cannot form the basis for defamation or IIED liability or, it should follow, an employment claim. This, they argue, is another example of performative defamation litigation designed to chill Griffin's internet advocacy (Griffin is a target for trolls and others); Johnson sued to shut her up. And making her not only defend, but defend in a distant place, furthers the silencing goal. But substantive frivolousness does not necessarily translate to jurisdictional frivolousness--that the lawsuit is nonsense does not mean the location is independent nonsense. Geographic inconvenience could form a piece of the performative nonsense--see Rudy Giuliani's defamation suit against Joe Biden in New Hampshire. But not always. And not here. Imagining the case had merit (as a court must in determining jurisdiction), this lawsuit is about Tennessee.

Griffin moved in the trial court to dismissed under 12(b)(2) and 12(b)(6), but the district court did not address the latter. She asked the court of appeals to do the 12(b)(6) analysis and dismiss, but the court wanted the trial court to take the first pass at that issue.

Judge Cole concurred. He argued that jurisdiction rests on the tweets tagging or speaking to the company and discussing Johnson's employment; absent those tweets, the case looks different. He might have come out the other way if Griffin's original tweet had described Johnson but not mentioned the company by name or location. That different case would turn on Johnson's conduct and Griffin's role as an LGBTQ+ activist and whether she was passively discussing events on the internet or whether she directed electronic activity into Tennessee with the intent to engage or interact with people or businesses there. I do not know what to think of that. On one hand, courts must recognize the undivided nature of internet communications--it is impossible for one Twitter user to control who views her tweets where, such that any communication is directed everywhere, not to the forum state. On the other hand, the analysis should acknowledge when a speaker in Califonia speakers to the world about an exclusively Tennessee thing.

Cole added this at the end: "Our opinion also does not comment on the veracity of Johnson’s allegations in making our personal jurisdiction determination." True and not disputed. But interesting that he saw need to mention the point and head off any suggestion that finding jurisdiction suggests the suit has any merit. Maybe this is why the First Amendment crowd was so vested in the court finding a lack of jurisdiction.

Posted by Howard Wasserman on November 4, 2023 at 12:34 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, November 03, 2023

JOTWELL: Kalajdzic on Erichson & Leib on class settlements as contracts

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor) reviewing Howard M. Erichson & Ethan J. Leib, Class Action Settlements as Contracts, 102 N.C. L. Rev. ___ (forthcoming 2023), which argues against understanding class action settlements as contracts.

Posted by Howard Wasserman on November 3, 2023 at 11:52 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, October 30, 2023

Private defensive litigation and the state role

The Third Circuit declared valid a New Jersey law requiring noncustodial parents, at the request of the custodial parents, to continue paying child support past the child's nineteenth birthday where the child is a full-time college student; the law does not impose such an obligation on custodial parents. Merits aside, I do not understand how this case reached federal court; that it did again illustrates how often courts and litigants--including the government--misunderstand or ignore the boundaries between offensive and defensive (and federal and state) constitutional litigation.

Pittman is the noncustodial parent. Pittman's ex-wife requested in state court continuation of the support obligation because their daughter was a full-time college student. The state court agreed and ordered three more years of support. Pittman sought relief from that obligation.

Pittman filed a § 1983 action in federal court. According to the district court, Pittman sued the governor and attorney general; the court granted a motion to dismiss, in part, because the governor and attorney general, as executive officials, have "no power to codify, amend, or abolish the laws Plaintiffs challenge, because that power is vested solely in the state legislature." Pittman filed an amended complaint naming the attorney general and the head and assistant head of the state Office of Child Support Services. All defendants moved to dismiss on Younger and Rooker-Feldman grounds; the district court denied the motions (rightly), then reached the merits and declared the law valid. No defendant raised "you sued the wrong person" as to the amended complaint. The court of appeals affirmed on the merits.

It seems to me the state defendants (and the district court) all misunderstood  why they are the wrong defendants and why the court should have dismissed the federal action . As far as I can tell from looking at New Jersey law, none of the executive officers is responsible for enforcing these laws. These laws govern family-court proceedings between private parties. Although the commissioner has rulemaking authority, the lawsuit did not challenge those regulations. The government, including these officials, plays no role in enforcing this law. The correct argument should have been that neither the governor nor AG is responsible for enforcing the challenged law, therefore the court could not enjoin them from doing so. Whether framed as standing, Eleventh Amendment, or merits, a federal court cannot enjoin an official from doing something he lacks the state-law power to do.

In other words, offensive litigation in federal court should not have been an option; this case required defensive litigation in state court. In resisting the continuation of the support obligation in the action against his ex, Pittman should have argued that the law allowing his child-support obligations to continue was constitutionally invalid, appealed that determination through the New Jersey courts and then to SCOTUS (if he lost--if he won, his ex-wife could have appealed). The challenge to the law should have proceeded like a challenge to a suspect state tort-reform provision--apply the provision in an actual tort case and adjudicate challenges to its validity.

Yet everyone missed this.

The governor and AG's argument as to the original complaint--"we cannot create or change the challenged law, that is the legislature's job"--is stupid. Taken seriously, the executive would never be a proper defendant in a constitutional challenge to a law because the legislature always controls the challenged laws. But the executive normally is the right defendant because constitutional litigation challenges the enforcement of the law, not the law itself--and the executive is  responsible for that. That is not true in this case because of the nature of the particular challenged law at issue. But not for the reasons the officials argued.  For the same reason, the three defendants in the amended complaint erred in not raising the same "wrong defendant" argument--we do not enforce this law.

So why did everyone mess up? At some level, I wonder if state officials prefer to litigate federal issues in federal court rather than state court. Why? The path to SCOTUS is one step shorter in federal court, but that does not seem a big deal. More importantly, I wonder if state officials buy the common idea that federal courts "do" federal law better than state court--they get federal law right--and that works as much for state governments seeking to argue their laws are valid as for rights-holders seeking to challenge their validity. State officials would rather defend an EpY action in federal court than litigate as interested parties in private state-court litigation, despite the purported "home-court advantage" in their courts.

Posted by Howard Wasserman on October 30, 2023 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, October 09, 2023

JOTWELL: Wasserman on Johnson on question selection

I have the new Courts Law essay, reviewing Benjamin Johnson, The Origins of Supreme Court Question Selection, 122 Colum. L. Rev. 793 (2022), an excellent history of how SCOTUS seized the power to grant cert and review discrete questions rather than entire cases.

Posted by Howard Wasserman on October 9, 2023 at 01:26 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, October 06, 2023

Judicial Process and Vigilante Federalism

Judicial Process and Vigilante Federalism, Rocky's and my latest on private enforcement, has been published in Cornell Law Review Online. The essay responds to Jon Michaels & David Noll's Vigilante Federalism.

Posted by Howard Wasserman on October 6, 2023 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 26, 2023

13th Annual Junior Federal Courts Workshop

The George Washington University Law School will host the 13th Annual Junior Faculty Federal Courts Workshop on March 8-9, 2024. The workshop pairs a senior scholar with a panel of junior scholars presenting works in progress. It is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, constitutional law, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present. There is no registration fee.

The conference will begin on the morning of Friday, March 8, and conclude by early afternoon on Saturday, March 9. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.

The workshop will take place at the George Washington University Law School, which is located in the heart of Washington, DC. GW will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. A discounted block of rooms will be made available at a nearby hotel.

Those wishing to present a paper must submit an abstract of no more than two pages to [email protected] by Friday, November 17, 2023.

Questions about the conference may be directed to Professor Chas Tyler at [email protected].

Posted by Howard Wasserman on September 26, 2023 at 12:50 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, September 18, 2023

Rebuffing Consent-Based Jurisdiction Over the PLO for Overseas Terrorist Acts

The following post is by Rocky Rhodes (South Texas) and Andra Robertson (Case Western), who have been writing and blogging about consent-based jurisdiction. They covered Mallory v. Norfolk Southern Railway for us last Term. We invited them to write a series of posts in the coming days on two recent Second Circuit cases, the first to consider Mallory's scope.

Procedural and transnational scholars have an abundance of puzzles to unravel in the Second Circuit’s recent decisions holding the Fifth Amendment’s Due Process Clause prohibited the “deemed consent” provisions of the federal Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA) from establishing personal jurisdiction over the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) for supporting overseas terrorist acts. The cases are the first federal circuit court decisions interpreting in depth the Supreme Court’s decision this summer in Mallory v. Norfolk Southern Railway Co., which held that Pennsylvania’s corporate registration scheme (which specifies that corporations registering to do business submit to general personal jurisdiction in Pennsylvania for any and all suits) did not violate due process. The Second Circuit’s decisions also rest on questions that have long divided scholars and courts on the transnational scope of the Fifth Amendment’s Due Process Clause and whether the PLO and PA should be afforded due process protections from the adjudicative authority of United States courts. We are grateful to Howard for giving us an opportunity for posting our thoughts and analysis in unpacking some of these issues.

The Suits Against the PLO and the PA

The primary and signed Second Circuit opinion, Fuld v. Palestine Liberation Organization, arose from the fatal stabbing of U.S. citizen Ari Yoel Fuld in a 2018 terrorist attack outside a shopping mall in the West Bank. His widowed spouse and his children filed suit in the Southern District of New York against the PLO, which conducts Palestine’s foreign affairs and serves as a Permanent Observer to the United Nations on behalf of Palestinians, and the PA, which is the non-sovereign and interim governing body of parts of the Gaza Strip and the West Bank. The Fulds allege that, because the PLO and PA incentivized and assisted the terrorist act that led to the fatal stabbing, monetary damages should be awarded against both defendants under the remedial provisions of the Anti-Terrorism Act (ATA), which authorize compensation to United States nationals injured “by reason of an act of international terrorism” from “any person who aids and abets, by knowingly providing substantial assistance” to the perpetrator of the attack.

But the PLO and the PA moved to dismiss the Fulds’ suit for lack of personal jurisdiction. Although Congress enacted the PSJVTA specifically to authorize jurisdiction over the PLO, the PA, and any successor or affiliated entities in suits under the ATA in federal court, the defendants urged that the PSJVTA’s jurisdictional provisions deeming their statutorily defined post-enactment conduct as a “consent” to personal jurisdiction conflicted with the dictates of the Fifth Amendment’s Due Process Clause.

Congress enacted the PSJVTA in response to the success of the PLO and the PA in having other overseas terrorist-activity suits under the ATA dismissed on jurisdictional grounds. One of those cases, Waldman v. Palestine Liberation Organization, was also before the Second Circuit, now for the third time, and was decided on the same day as Fuld. Almost twenty years ago, the Waldman plaintiffs had likewise sued the PLO and the PA under the ATA for money damages for providing material support for terrorist attacks. Although the Waldman plaintiffs eventually obtained a substantial jury verdict, the Second Circuit reversed in Waldman I, 835 F.3d 317 (2d Cir. 2016), on the basis that the PLO and the PA were not amenable to jurisdiction. While acknowledging that sovereign foreign governments lacked due process rights, the Second Circuit concluded that, because neither the PLO nor the PA were recognized by the United States as sovereign states, they were protected by personal jurisdiction due process limits, which are “basically the same under both the Fifth and Fourteenth Amendments.” The only relevant difference, according to the Second Circuit, is that the Fifth Amendment allows the consideration of the defendant’s contacts throughout the United States, rather than just with a particular state.

In the absence of consent, these jurisdictional limits require that foreign defendants such as the PLO and the PA have the necessary contacts with the United States to support general or specific jurisdiction. General jurisdiction exists where the defendant is “at home,” allowing plaintiffs to bring all claims, wherever they arose. But the PLO and the PA are “at home” only in Palestine, the headquarters and nerve center of both entities. Specific jurisdiction occurs when the defendant establishes purposeful contacts with the forum and the dispute “arises from or relates to” the defendant’s forum contacts in a manner that satisfies certain standards of fairness. But the overseas terrorist activities of the PLO and the PA were neither related to nor aimed at the United States—the random attacks only affected U.S. citizens because they were victims of indiscriminate violence abroad, which the Second Circuit held in Waldman I was not sufficient for specific jurisdiction.

Statutory Jurisdictional Consent

Congress initially responded to Waldman I, and similar holdings in the District of Columbia Circuit dismissing cases under the ATA against the PLO and the PA for lack of personal jurisdiction, with the Anti-Terrorism Clarification Act of 2018 (ATCA). The ATCA provided that if, after more than 120 days of the statute’s enactment, a defendant accepted certain forms of assistance from the United States or maintained an office within the jurisdiction of the United States under a waiver of a federal statute barring the PLO from operating such an office, the defendant would be deemed to have consented to personal jurisdiction in an ATA suit, regardless of when the international terrorism occurred or suit was filed. But, within the 120-day period, the PLO and the PA formally terminated their acceptance of any relevant assistance from the United States and shut down the PLO’s only office operating pursuant to a federal statutory waiver. Based on these actions, neither of the ATCA’s predicates were met. The Second Circuit in Waldman II thus refused to recall its mandate from Waldman I that dismissed the suit for lack of personal jurisdiction. See Waldman v. Palestine Liberation Org., 925 F.3d 570 (2d Cir. 2019) (per curiam), cert. granted, judgment vacated sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020) (mem.).

While petitions for writs of certiorari were pending before the Supreme Court in Waldman II and a case from the D.C. Circuit, Congress tried again for a consent-based solution, this time with the “Promoting Security and Justice for Victims of Terrorism Act of 2019.” The PSJVTA, which applies just to the PLO, the PA, and successor or affiliated entities, deems that those entities consent to personal jurisdiction if, after a specified number of days from the statute’s enactment, they either (1) make a direct or indirect payment to an imprisoned terrorist or a member of his family after his death, or (2) conduct activities while physically present in the United States or maintain any facilities or establishments within the United States other than those devoted exclusively to conducting official business of the United Nations or related to engagements with United States officials or legal representation. Congress provided that this new act should “be liberally construed to carry out the purposes of Congress to provide relief for victims of terrorism” and should apply to “any case pending on or after August 30, 2016,” which meant it applied to both the Waldman and Fuld litigation.

Congress thus sought in the PSJVTA to rely on a third pathway to personal jurisdiction: consent. Defendants may consent to personal jurisdiction, either by agreement or litigation conduct, in a forum where they would not otherwise be subject to personal jurisdiction. As we have discussed previously on Prawfs, the Supreme Court held in Mallory this summer that the Due Process Clause was not violated by Pennsylvania employing a consent theory to uphold jurisdiction over an out-of-state corporation registering to do business in the state, even when that corporation would not otherwise be subject to either general or specific jurisdiction. Congress similarly sought to base jurisdiction over the PLO and the PA on their deemed consent to jurisdiction in engaging in certain specified activities.

But the PLO and the PA responded in Fuld and Waldman that the statutory jurisdictional predicates in the PSJVTA did not signal an acceptance of or an intent to submit to the jurisdiction of the United States. While a variety of legal arrangements may constitute the necessary consent, the defendants maintained that the predicate activities deemed “consent” under the PSJVTA were unrelated to the litigation or any submission to the judicial power of courts in the United States. In other cases relying on this jurisdictional basis, the defendant’s consent was predicated on either litigation-related conduct or the acceptance of some in-forum benefit conditioned on amenability to suit in the forum. But neither of those, the defendants argued, were present under the PSJVTA. First, foreign payments made to foreign nationals were neither an in-forum benefit nor related to litigation conduct; and second, the United States had not provided any forum benefit for the alleged United States activities of the PLO and the PA—rather, any such activities were illegal under federal law. This meant, according to the defendants, that the PSJVTA deemed activities consent in a manner that violated their due process rights.

The Second Circuit agreed. We will explore the Second Circuit’s rationale and its implications for the future of consent jurisdiction in our next post.

Posted by Howard Wasserman on September 18, 2023 at 09:31 AM in Civil Procedure, Judicial Process | Permalink | Comments (0)

Monday, September 11, 2023

JOTWELL: Malveaux on Williams on sex-plus

The news Courts Law essay comes from Suzette Malveaux (Colorado) reviewing Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, __ Employee Rts. & Emp. Pol. J. __ (forthcoming) on how courts deal with intersectional discrimination claims.

Posted by Howard Wasserman on September 11, 2023 at 02:40 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Saturday, September 09, 2023

The Procedure of Trump (Updated)

Someone on the Civ Pro listserv suggested that one could structure a Civ Pro/Fed Courts course around Donald Trump and his orbit. Today's lesson: Removal and Remand.

1) Judge Jones remanded the Georgia prosecution of Mark Meadows, concluding that Meadows did not satisfy the requirements  of federal-officer removal because neither the charged conduct nor the alleged overt acts related to his office or his official duties (the court never reached colorable federal defense). The court emphasized the absence of an executive role in state elections and the Hatch Act's limitations on federal employees' partisan activities; these defined the outer limits of Meadows' job. Because Trump, and thus Meadows, cannot play a role in state elections, everything Trump did post-election (the Raffensberger phone call, etc.) involved the campaign and his efforts as a candidate, which the Hatch Act places beyond Meadows' official functions. Remand of a § 1442 removal is appealable, and Meadows has appealed.

2) A group of citizens, represented by C.R.E.W., filed suit in Colorado against Trump and Colorado Secretary of State Jena Griswold, seeking to exclude Trump from the ballot under § 3 of the 14th Amendment; Trump removed. Derek Muller and Will Baude agree on the predicted outcome--the federal court will remand because, while there is arguably jurisdiction under § 1331,  plaintiffs lack Article III standing. I will add the following:

    • I think the § 1331 argument is pretty strong. To arise under federal law under Grable & Sons, the federal issue must be necessarily raised, actually disputed, substantial (meaning important to the federal system at a whole), and capable of resolution in federal court without disrupting the federal-state balance approved by Congress. The first three seem obvious here. The last prong looks, in part, to how often the type of case will arise and how many similar cases will land in federal court. So a quiet title action turning on the validity of a federal tax lien will not come up that often; negligence claims based on drug misbranding and attorney malpractice arising from patent work will come up frequently. A dispute over candidate qualifications, especially whether a candidate engaged in insurrection or rebellion, seems more analogous to the tax lien case.

    • The case will be remanded on standing. An individual voter does not have more than a generalized grievance as to who appears on the ballot. Discussions of how to enforce § 3 never mention the several unsuccessful 2008 lawsuits by random citizens seeking to declare Obama ineligible as not born in the U.S.; all were dismissed for lack of standing.

    • The removal problem arises because of the plaintiff's procedural choice to include Trump as defendant. Why did they do that? The relief sought--a declaration of ineligibility and an injunction preventing his inclusion on the ball0t--runs against the secretary, not Trump. Trump has an interest in the case that the secretary may not adequately protect and he may be entitled or permitted to intervene to protect that interest. But there does not seem to be any reason to include him as a defendant in the first instance, which also gave him the power to remove.

Update: Trump filed an unopposed motion to remand after consulting with plaintiffs and recognizing that they lack standing and that removal was procedurally improper (Griswold did not join or consent to removal but had been served, contrary to Trump's initial representation).

3) Paulsen/Baude argue that § 3 is self-executing. The responses/critiques have confused effectiveness with enforcement. Their point is that § 3 creates an extant and enforceable legal obligation--one that does not require congressional action and has not been rendered a nullity by past congressional action or by desuetude. But, as with any legal provision, someone has to enforce that obligation, which usually leads to court; Paulsen/Baude do not claim otherwise. The question is how that occurs, which forms a big piece of Akhil Amar's two-part discussion with Baude and Paulsen). Paulsen in Part II gets to what I believe the right answer--some enforcement action by a state official, followed by some state-law proceeding in state court, followed by (often expedited) review to the state supreme court, followed by SCOTUS review. SCOTUS will get the last word, but the case arrives from state court (as Bush v. Gore did); none of this will begin--or be removed to--federal district court. And, again, that is perfectly fine and consistent with ordinary litigation. As with the controversy around S.B. 8, it is simply not true that the sole or necessary process for constitutional adjudication is an offensive EpY action in federal court.

Posted by Howard Wasserman on September 9, 2023 at 07:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, September 02, 2023

Fugitive abortion seekers

The Washington Post reports on the latest exclusive-private-enforcement efforts from Mark Lee Dickson and Jonathan Mitchell--county and city ordinances prohibiting the use of local roads to obtain a legal out-of-state abortion, enforced through private lawsuits. I have questions.

How does private enforcement work here and how does a plaintiff have the basic information to bring suit? How can a plaintiff know what roads someone took to leave the state? Is he going to follow the woman and her driver through town (and when does that become stalking)? Are they given interdiction authority to find out where someone is heading (which strengthens the argument that "any person" acts under color)? Will local law enforcement help (which provides a target to sue in an offensive pre-enforcement action)? How can a plaintiff know they took these roads on the "abortion trip" as opposed to some other time. What constitutes one trip and how do you identify the purpose of that trip--if a person drives on those roads on Monday but does not leave the state for the procedure until Wednesday, has she used the roads to obtain the abortion?

The hard part for rights-holders facing these laws is creating litigation and the opportunity to challenge the law as a defense. Anti-choice activists do not want to sue, because they do not want to provide that opportunity, since the law is clearly constitutionally invalid. Someone needs to be Estelle Griswold. A friendly plaintiff action should be easy heree--"any person" includes anyone anywhere who knows the route a woman took out of state, including any person who supports abortion rights. Or how about a caravan of cars driving through town at once, daring someone in town to sue. Again, it takes time. But these ordinances seem to impose less of a chill than S.B. 8 did.

These private-enforcement laws (what Jon Michaels and David Noll call "vigilante federalism" and "subordination regimes") have, thus far, remained the province of red states. Despite suggestions about the rights blue states could target (something Rocky and I look at in a potential new paper), only California has done something, a half-hearted regulation of ghost guns and assault weapons. This story reminds of another feature of performative cultural-war legislation--the divide between states and municipalities. Red states (notably Florida and Texas, of course) use state law to override the local laws and policies of blue municipalities within the state--Ron DeSantis suspended two elected Democratic states attorneys; Florida's various anti-woke laws aim to override local school-board policies; Texas has stripped cities of the power to establish immigrant sanctuary cities. The Post article mentions blue-state conservative cities near a red-state border (for example, New Mexico cities near the Texas border or Illinois cities near the Missouri border) prohibiting abortion clinics from operating there, thus eliminating a destination for out-of-staters seeking services. Yet Democratic state governments have not taken similar steps to strip municipalities of their local power.

Posted by Howard Wasserman on September 2, 2023 at 02:31 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 30, 2023

More merits and standing overlaps

The Third Circuit rejected a First Amendment challenge to Pennsylvania's anti-discrimination/anti-harassment PR rule (ABA Model Rule 8.4(g)), concluding that the lawyer plaintiff (Zachary Greenberg) lacked standing. Given the definitions of harassment and discrimination, the plaintiff's planned speech (teaching CLE classes in which he would oppose hate-speech bans, repeat racist epithets in discussing cases, support due process protections for people accused of sexual misconduct, and support the right to express intolerant racist views) did not violate the rule and did not face a credible threat of enforcement.

This strikes me as good illustration of standing constitutionalizing an obvious merits issue. The plaintiff did not suffer an injury because his planned speech did not violate the rule and thus he did not risk liability for it. But that is the same as saying the rule does not violate his First Amendment rights by imposing liability on him for his protected speech. In fact, that is how the First Amendment would be raised and adjudicated in an enforcement action--the state initiates disciplinary proceedings against Greenberg; Greenberg defends by arguing that his speech does not constitute harassment or discrimination or that if it does, the statute is constitutionally invalid because his speech is protected by the First Amendment; and the disciplinary proceeding fails on the merits (either before the Bar or before the Pennsylvania Supreme Court).

If that analysis goes to the merits in an enforcement action, it should go to the merits (and not jurisdiction) in a pre-enforcement action. A pre-enforcement action allows a rights-holder to determine her substantive rights without having to violate the law and risk sanction. That pre-enforcement action should mirror the enforcement action. If jurisdiction is not an issue in one, it should not be in the other. The counter might that the question of the scope of the law and whether it reaches speech (the first defense in an enforcement proceeding, independent of the constitutionally protected nature of the speech) is a question of state law and that the federal court lacks jurisdiction to address state law. But courts do not fine-grain the standing analysis in that way.

Greenberg tried to argue that he would alter his speech based "on his perception of the social climate, which he sees as infested by '[w]idespread illiberal impulses for ‘safetyism,’”" citing studies of public distaste for offensive speech. But the court refused to find injury, traceable to the rule, from Greenberg's discomfort in speaking freely or in losing professional reputation, job opportunities, and speaking opportunities. This is important. The PR rules should not sanction lawyers for protected-but-obnoxious speech. The First Amendment should have nothing to say about social consequences for being publicly obnoxious.

Posted by Howard Wasserman on August 30, 2023 at 12:23 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 23, 2023

303 Creative as "fake case" (Updated)

I have never understood the "fake case" criticism of 303 Creative. The fact that Smith had never designed a wedding site or been asked to do so and the supposed fake email request from a same-sex couple struck me as red herrings.

In attempting to write (without success, thus far) on the case, I looked at the lower-court orders. The district court denied standing because Smith could not show that any couple, much less a same-sex couple, would seek her services (this is where the notorious email comes in). The court of appeals reversed, relying on Susan B. Anthony List, the controlling case on pre-enforcement First Amendment challenges that the district court did not cite. SBA adopts a forgiving approach, at least in First Amendment cases--plaintiff must show "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Smith satisfied the first prong because "[a]lthough Appellants have not yet offered wedding website services, Ms. Smith has been employed as a graphic and web designer in the past. Appellants have also provided clear examples of the types of websites they intend to provide, as well as the intended changes to 303 Creative's webpage." The court would not assume that, if Smith offered the intended wedding-site services, no customer would request her services or that only opposite-sex couples and no same-sex couples would do so. To require the latter proof would eliminate pre-enforcement challenges, requiring rights-holders to violate the law and create active enforcement situations. That all seems right to me.

Standing's ideological drift increases daily--the left wants to ratchet it up and the right wants to swing open the federal courthouse doors. But imagine A wants to open a drag club in Tennessee--she has not begun business, but has run clubs in the past and lays out her business plan for the club. I imagine critics of 303 who support LGBT+ rights would want that business owner to be able to file a pre-enforcement action and not be forced to open the business, put on a show, and have some unknown customer complain.

Update: As if on queue , Richard Re has an essay (forthcoming in Notre Dame Law Review Reflections) showing why the criticisms are wrong, if one accepts pre-enforcement litigation, and how the case indicates an ideological realignment on standing.

Posted by Administrators on August 23, 2023 at 01:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 16, 2023

9th Annual Civil Procedure Workshop

Ninth Annual Civil Procedure Workshop

May 31, 2024 - June 1, 2024

We are excited to announce that CPW9 will be hosted by UC Law SF in downtown San Francisco May 31-June 1, 2024.

Conference Information

CPW9 will give both emerging and established civil-procedure scholars an opportunity to gather with colleagues and present their work in plenary and breakout sessions. Senior scholars will moderate the plenary sessions and lead the commentary. All civil-procedure scholars are warmly invited to attend. There is no registration fee. CPW9 will provide meals for registrants, but registrants generally cover their own travel and lodging costs. Registration information and additional details will be announced in 2024.

Call for Papers

Those wishing to present a paper for discussion should submit an abstract of no more than 4,000 characters (around 500 words) by Friday, January 19, 2024. Papers from both emerging and senior scholars are welcome, but preference may be given to those who have been teaching for ten or fewer years. Abstract review is blind to author name and institutional affiliation. Papers at all stages of completion, including those likely to still be substantially incomplete at the time of the conference, are eligible. Accepted submissions will be notified in February 2024. Please submit your abstract online here.

Questions

Email Professor Scott Dodson at [email protected] with questions regarding the conference or the call for papers.

Sponsors

CPW9 is generously supported by UC Law SF, the Center for Litigation and Courts, and the American Association for Justice’s Robert L. Habush Endowment.

Posted by Howard Wasserman on August 16, 2023 at 09:27 AM in Civil Procedure, Teaching Law | Permalink | Comments (0)

Monday, July 31, 2023

Peak scope-of-injunction confusion

Judge Presnell (M.D. Fla.) may have produced the singularity of scope-of-injunction confusion in refusing to narrow-and-stay his injunction prohibiting enforcement of Florida's anti-drag law. The plaintiff is the owner of an Orlando restaurant that presents drag performances; the court preliminarily enjoined state officials (properly) from bringing "any enforcement proceedings" (improperly). The state sought to stay the injunction to the extent it went beyond the plaintiff--which Presnell describes as "neuter[ing]" the injunction.

Presnell emphasizes the law's facial invalidity in justifying the scope of the injunction. In doing so, he commits several category errors.

• The court relies on overbreadth cases allowing rights-holders to challenge a statute because of the statute's broader effects. But First Amendment overbreadth does not expand the scope of the court's order. It allows a rights-holder whose speech could be constitutionally regulated by the challenged law to raise the law's constitutional invalidity because it would be constitutionally invalid as to someone else's speech. Overbreadth allows a party to make constitutional arguments and to gain judicial relief based on those arguments about how the law affects non-parties. But nothing in that doctrine extends the judicial remedy to those non-parties; it merely gives the party additional arguments.

    Many overbreadth cases are not § 1983 offensive pre-enforcement actions; they are enforcement actions in which rights-holders raise the First Amendment as a defense (despite the defendant engaging in unprotected activities). Although the overbreadth arguments are the same, no one believes that an order dismissing a state enforcement action (e.g., a prosecution of the corporation or an attempt to strip its liquor license) protects anyone beyond that party.

    Here lies the benefit of Henry Monaghan's justification for overbreadth--valid law due process. Due process requires that any law be constitutional valid before it can be enforced against anyone, even if those constitutional defects do not affect the party to the case. This explains why an Carol Anne Bond could raise federalism defects in a chemical-weapons ban.

• I am not entirely sure why the court went the overbreadth route here. Nothing the plaintiff wants to host in its restaurant falls outside constitutional protection--it is not obscene or obscene-as-to-older-minors; this is not a case of a plaintiff arguing "my speech is unprotected but the law reaches other people's protected speech." The law is overbroad in the sense of not narrowly tailored, but that is a different thing.

• The court relies on Califano v. Yamasaki as to the availability of facial challenges. But it ignore the parts of Califano that the injunction should provide "complete relief to the plaintiffs." However constitutionally invalid the law might be or however broad the constitutional arguments he can make, the remedy benefits the plaintiff. And allowing continued enforcement of this law against others does not deny the plaintiff complete relief.

• The court conflates, in the most explicit language I have seen, geographic and party scope. The court says the following:

    • Responding to Eleventh Circuit doubts about so-called nationwide (but really universal) injunctions, the court says this "injunction is neither nationwide, nor does it pertain only to a limited class of individuals."

    • This law is not limited to a discrete universe of plaintiffs; it could apply to the vast majority of Floridians.

    • "To limit Defendant’s enforcement of the Act only to Plaintiff would subject everyone else in Florida to the chilling effect of a facially unconstitutional statute. Consequently, a statewide injunction which includes non-parties accords with the extent of the violation established."

The court expressly conflates nationwide/statewide and university. Every injunction as to a federal law is nationwide and every injunction as to a state law is statewide--the injunction prohibits enforcement of the law against the plaintiff every place in the nation/state that plaintiff goes.* Thus, of course this injunction is and should be  statewide--Florida cannot enforce this law against any restaurant that HM Florida, LLC owns and operates. But Presnell issued a universal injunction, one that protects everyone everywhere; that is the problematic piece of this.

[*] And out of state, but the protection against that comes from the limits of a law's extraterritoriality, not the injunction.

Again, this is why nomenclature matters and why the wide adoption of "nationwide" confuses the analysis. This injunction suffers the  identical defect as the Mifepristone or student-loan or sanctuary-city injunctions against federal laws and regs--it protects beyond the plaintiffs without class certification. But because we have used "nationwide" to describe those, Presnell could purport to distinguish those cases and thus the doubts about those injunctions--"those were nationwide injunctions, whereas this injunction is statewide."

• On the court's reasoning, the more people subject to a law, the more people whose rights the law infringes, and thus the more proper a universal injunction. That means that universal injunctions should be the norm, at least for laws of general applicability. But that would undermine the principle that enjoining a prosecution as to one person leaves the state free to prosecute others. And it renders FRCP 23(b)(2) useless--if a state can enjoin enforcement against everyone subject to a law when one person sues, no plaintiff would ever need or want to certify a civil-rights class.

• This also demonstrates how universal injunctions allow individual judges to arrogate a great deal of power, at the expense of other courts--to play constitutional hero. Yes, this law chills the speech of many, many people. The remedy for that is for any chilled speaker to sue and obtain an injunction protecting itself against enforcement (as the plaintiff did here) and for the opinion in one case to guide future courts handling future lawsuits from other speakers asserting their rights and seeking a remedy that protects them. If Presnell is right about the law's validity, his opinion in this case will persuade other judges to reach the same conclusion and issue injunctions protecting future plaintiffs. Moreover, if Presnell is wrong about the law's constitutional validity, his single order deprives any other judge or court from the opportunity to address that question.

Bad all around. While I hope the 11th Circuit affirms that the drag laws are constitutionally invalid, I also hope it corrects as to the scope of the injunction. Meanwhile, I wish courts would get this stuff right so I do not have to keep defending the authoritarians in Florida's government.

Posted by Howard Wasserman on July 31, 2023 at 02:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, July 18, 2023

JOTWELL: Endo on Young & Billings on access to justice

The new Courts Law essay comes from Seth Katsuya Endo (Seattle), reviewing Kathryne M. Young & Katie R. Billings, An Intersectional Examination of U.S. Civil Justice Systems, 2023 Utah L. Rev. 487.

Posted by Howard Wasserman on July 18, 2023 at 01:47 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, July 09, 2023

Fighting universality

Jeffrey Sutton of the Sixth Circuit has been a leading critic of universal injunctions. He returned to that in an order staying the injunction barring enforcement of Tennessee's prohibition on gender-affirming medical care. The majority held that the plaintiffs were unlikely to succeed on appeal on their equal protection or due process claims. The "fraught task of justifying" universal relief reenforced the need for the stay:

District courts “should not issue relief that extends further than necessary to remedy the plaintiff’s injury.” Commonwealth v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). The court’s injunction prohibits Tennessee from enforcing the law against the nine challengers in this case and against the other seven million residents of the Volunteer State. But absent a properly certified class action, why would nine residents represent seven million? Does the nature of the federal judicial power or for that matter Article III permit such sweeping relief? A “rising chorus” suggests not. Doster v. Kendall, 54 F.4th 398, 439 (6th Cir. 2022); see, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas, J., concurring); Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 599–601 (2020) (Gorsuch, J., concurring); see also Samuel Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 457–82 (2017). Article III confines the “judicial power” to “Cases” and “Controversies.” U.S. Const. art. III, § 2. Federal courts may not issue advisory opinions or address statutes “in the abstract.” California v. Texas, 141 S. Ct. 2104, 2115 (2021) (quotation omitted). They instead must operate in a party-specific and injury-focused manner. Id.; Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). A court order that goes beyond the injuries of a particular plaintiff to enjoin government action against nonparties exceeds the norms of judicial power.

The scope issue has arisen in other district court decisions declaring invalid these care bans. District courts have issued broad injunctions despite obvious opportunity for narrower relief. The order universally prohibiting enforcement of Kentucky's ban is in obvious trouble for this and for substantive reasons.

Posted by Howard Wasserman on July 9, 2023 at 12:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, July 05, 2023

Injunctive absurdity

Judge Doughty of the Western District of Louisiana found that federal jawboning of social media sites with respect to COVID, the 202 election, and Hunter Biden likely violates the First Amendment and enjoined hundreds of federal officials (including all of State, HHS, and DOJ) from engaging in a whole range of speech urging social-media companies to remove material. Some thoughts:

• He finds that Missouri and Louisiana have standing, in part, on behalf of their citizens' speech rights, even though states cannot exercise parens patriae standing against the federal government. The court also cannot say that the sites removed speech because of government coercion or that they would not have removed the speech without government action, which should be essential to traceability and redressability. And to the extent the evidence is unclear, the plaintiffs bear the burden of establishing standing so the uncertainty should go against standing.

• The line between lawful government speech and problematic jawboning or coercion is difficult. Judge Doughty makes no effort to engage that question or draw that line. He offers pages of examples of communications between government social-media companies in Newsmax-level conspiratorial tones, but does not explain where the line is or when some communications cross the line. Some examples lack any direct communication between government and the companies. For example, the court offers Anthony Facui's public media statements and congressional testimony criticizing hydroxychloroquine as a COVID treatment followed by social-media sites removing certain videos. Apropos the point above, the court says Facui may have spoken with sites, but does not remember. Again, however, the plaintiffs bear the burden of showing communication and causation.

• The court finds coercion, in part, because much of the targeted speech is "conservative." But viewpoint discrimination is irrelevant to the coercion line. Coercion is coercion regardless of any viewpoint preference--government engages in impermissible jawboning regardless of whose speech it targets. On the other hand, non-coercive government speech can be as viewpoint discriminatory as the government wants to be.

• The injunction is absurd in its breadth. From the binding side, it binds hundreds or thousands of officials. It prohibits officials from "urging" or "encouraging" social-media companies to adopt or change content-moderation guidelines or to do anything with "protected free speech" on their sites.

• The injunction is internally inconsistent; it swallows itself, in a way one commentator describes as the judge wanting to have his cake and eat it. After listing all the "protected" speech the government cannot encourage or urge sites to remove, the court limits the injunction to not reach "permissible government speech promoting government policies or views on matter of public concern" (such as appearances on TV to discuss the effectiveness of medical treatments, perhaps?). And it does not reach speech "informing" social-media companies of "threats that threaten the public safety or security of the United States;" "postings intending to mislead voters about voting requirements and procedures;" and  efforts to "detect, prevent, or mitigate malicious cyber activity." The line between "informing" and "urging" or "encouraging" is illusory and the court never attempts to define it. In any event, much of the speech covered by the injunction falls within the categories excluded by the injunction and vice versa.

For example, speech threatening the public safety of the United States retains constitutional protection unless it is a true threat or incitement, which most of the speech on these sites is not. So at the same time the injunction allows officials to inform social media companies of speech that threatens public safety, it cannot urge companies to do anything about that speech.

• I guess Republican officials now like universal injunctions, because this defines the concept. The plaintiffs are two states and about five individuals; the injunction prohibits government from taking steps to urge sites to remove the speech of any person on any site from any source. As always, the injunction could have been particularized to these speakers, those two states, and the citizens of those two states.

• Compounding the universality problem, the court refused to certify a 23(b)(2) class, because the plaintiffs had not presented a "working class definition." This demonstrates, from two directions, how universality undermines Rule 23(b)(2). Class certification is pointless and unnecessary if individual plaintiffs can obtain relief for an entire class of possible speakers. And if the court cannot define an appropriate class of speakers, it should not issue an injunction protecting every would-be member of that class.

Some free-speech advocates have argued that the federal government's conduct--from both the Trump and Biden Administrations--has crossed some lines. But this absurd injunction is not the answer.

Posted by Howard Wasserman on July 5, 2023 at 03:22 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, July 03, 2023

303 and SB8 (Update)

I have not gotten around to reading 303 Creative or commenting on the First Amendment analysis. I want to address the standing issues not addressed in the case but which have entered the conversation.

Liberal critics have decried this as a "fake" case because no same-sex couple asked Lorie Smith to design a web site for their wedding. The record includes a declaration about one same-sex couple that did request a wedding page, but that story appears false--one of the men is married to a woman and played no role in the case. Thus, the argument goes, Smith and 303 lacked standing, but the Court (as its liberal conservative (interesting mistake) majority is wont to do) ignored that to reach out on an issue and hand a victory to a religious-conservative cause.

Apart from my usual views about standing, this should be a non-issue. Smith brought an offensive pre-enforcement challenge, so she need not show actual violations of the law or actual enforcement of the law against her--the whole point is to be able to challenge the law without violating it or risking legal sanction. She had opened a web design business and intended to do wedding sites; state law proscribed her desired conduct (decline business from same-sex couples and announce that intent); and the state was likely to enforce the law against her if she announced and followed that practice. That should be enough for a pre-enforcement action, especially in a free speech case (where courts apply standing in a more-forgiving way). Moreover, this looser approach benefits minors challenging state prohibitions on gender-affirming care--I do not want courts hanging those cases up on "this plaintiff alleges that she wants gender-affirming care, but has not yet seen a doctor or has not yet been prescribed puberty blockers."

Some link 303 and SB8 and find political motivations in the Court's differential treatment--303 dramatically expanded a species of free-speech right through an expansive approach to pre-enforcement litigation, while the Court's restrictive approach as to SB8 eliminated all pre-enforcement challenges to an abortion restriction. But the cases are not comparable. 303's supposed standing problem involves injury--because Smith had never been asked to make a wedding web site for a same-sex couple, she incurred no injury (no genuine risk the state would enforce the law against her). The standing problem in SB8 went to traceability and redressability--the lack of public enforcement meant no public official caused that injury and the court could not enjoin anyone to stop enforcement. 303 does not reflect a distinct approach to pre-enforcement litigation. Had Colorado adopted purely private enforcement for its public-accommodations laws,* there is no reason to believe the Court would not have rejected the case for the same reasons it rejected Whole Women's Health.

[*] Perhaps Blue states seeking to mimic SB8 for liberal causes and against disfavored constitutionally protected activity should consider this issue, rather than obsessing about guns. I wonder what Jonathan Mitchell, Texas officials, and conservative commentators would say.

Update: I do not intend to minimize the issue of the false evidence. If that turns out to be the case, Smith and her lawyer should be on the hook for sanctions. It does not change the appropriateness of the case, because the case was sufficiently real and live without that further evidence.

Posted by Howard Wasserman on July 3, 2023 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 30, 2023

Final orders list

The Court released its clean-up order following the release of opinions, granting cert in several cases. Several things of note:

• No decision on the NetChoice cases (challenges to Texas and Florida content-moderation laws). This is somewhat surprising, since the circuit split and the First Amendment implications make a grant inevitable.

• The Court denied cert. in Cooper Tire & Rubber v. McCall, a Georgia case raising the Mallory issue of consent-by-registration personal jurisdiction. Our guest bloggers on Mallory--Rocky Rhodes and Andra Robertson--discussed the Court's perhaps-strategic choice to use Mallory rather than Cooper as the vehicle to resolve the issue. But what to make of the Court denying cert in Cooper rather than GVRing. As Rocky and Andra explained, Georgia had a stronger interest in Cooper than Pennsylvania had in Mallory--the defendants in Cooper were from Georgia, whereas no one in Mallory had any case-related connection to Pennsylvania. So if consent jurisdiction is valid in Mallory, it must be valid in Cooper. At the same time, the Court did not see fit to allow the Georgia Supreme Court to address the dormant commerce clause issue that Justice Alito emphasized in his (controlling??) concurrence-in-the-judgment.

• Justice Sotomayor called for reexamining qualified immunity in two dissentals (Justice Jackson would have granted cert in one, although she did not join the statement) from the Eighth Circuit. She raises the usual litany of criticisms of the doctrine and how lower courts have applied it.

I hope to write about 303 Creative and the standing in the student-loan cases this weekend.

Posted by Howard Wasserman on June 30, 2023 at 03:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 29, 2023

Mootness and jurisdiction in Moore

I am late to the conversation about Moore v. Harper, where the Court found the case alive (over the dissent of Thomas, Alito, and Gorsuch) and (mostly) rejected the independent state legislature doctrine. Three thoughts on the jurisdictional issues. (Long post ahead).

1) I still am not sure where I land on mootness. I do not believe--contra Justice Thomas and Josh Blackman-- that the Chief fell into the writ-of-erasure fallacy. Thomas fills Part I of his dissent with (correct) descriptions of how courts enjoin actors from taking action, do not act against laws themselves, and "do not render 'judgments' that toggle statutes from 'operative' to 'inoperative' and back again, as if judicial review were some sort of in rem jurisdiction over legislative Acts."

Here is the procedural history: The state trial court held that partisan gerrymandering is a political question under the state constitution. The North Carolina Supreme Court reversed; it made three legal determinations--1) partisan gerrymandering is justiciable; 2) ISL is nonsense; and 3) the 2021 electoral maps were invalid partisan gerrymanders--and entered a judgment prohibiting use of those maps. The state legislators appealed that decision to SCOTUS. Following SCOTUS' cert grant, NCSCt affirmed the trial court's decision rejecting a remedial map. On rehearing (and following a change of court personnel), NCSCt withdrew its opinion affirming rejection of the remedial maps, "overruled" its original decision (the one sitting before SCOTUS), and dismissed the action with prejudice. But, the majority says, the state court never reinstated the original maps; its decision started everything over, allowing the NC legislature to enact whatever maps it chose. That includes enacting a new law adopting the 2021 maps.

Despite some loose language in the Chief's opinion about "presently operative statutes," I do not believe he made the mistakes Thomas accuses him of making. Rather, I think the point of departure is what happens to a preliminary injunction when the action is later dismissed. NCSCt issued an order--do not use the 2021 maps; that order was on review to SCOTUS. The court overruled the basis for that order in concluding that partisan gerrymandering is a political question and allowing the legislature to do what it wants going forward. But it did not authorize use of the 2021 maps authorized by the 2021 law.

Does that matter?

2) While I agree with Thomas' explanations for the role of courts (while remaining unsure of his conclusion), I question this:

[A]n unconstitutional provision is never really part of the body of governing law,” for “the Constitution automatically displaces [it] from the moment of [its] enactment.” Collins v. Yellen, 594 U. S. ___, ___ (2021) (slip op., at 35) (emphasis added). Thus, when a court holds a statute unconstitutional, it is emphatically not depriving it of any legal force that it previously possessed as an Act. The court is only deciding “a particular case” “conformably to the constitution, disregarding” a statute that cannot “govern the case” because it is already “void.” Marbury, 1 Cranch, at 178; accord, Bayard v. Singleton, 1 N. C. 5, 7 (1787) (holding that the unconstitutional “act on which [a party’s] motion was grounded . . . must of course, in that instance, stand as abrogated and without any effect”). “That is the classic explanation for the basis of judicial review” set forth in Marbury and Bayard, and it remains “from that day to this the sole continuing rationale for the exercise of this judicial power.” Mackey v. United States, 401 U. S. 667, 678 (1971) (Harlan, J., concurring in judgment in part and dissenting in part).

That works for defensive litigation. When the state prosecutes Johnson for burning a flag, the court disregards the law of prosecution and refuses to allow it to govern the case, thereby requiring dismissal of the prosecution. It does not work for offensive pre-enforcement litigation, in which the federal plaintiff seeks to avoid the case in which the challenged law would govern, by enjoining an official from enforcing that law in the future. A federal court in an offensive action does not disregard the challenged law; it prevents future conduct by a government official with that law. And that conduct may occur outside of court--such as administering elections under particular maps.

3) Mootness aside, Moore also presented issues of SCOTUS jurisdiction under § 1257(a), which is limited to "final" judgments or decrees. Although the state court had decided that ISL does not apply (a federal issue), the case remained ongoing in state court as the parties worked to create new maps consistent with the state constitution.  Cox Broadcasting v. Cohn treats as final cases in which the "highest court of a State has finally determined the federal issue present in a particular case, but in which there are further proceedings in the lower state courts to come." Cox identified four circumstances in which a state supreme court order is final despite ongoing state-court proceedings. The majority relied on the second category--"the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state court proceedings."

This is the wrong category. Cox defined this category by citing to Radio Station WOW and Brady v. Maryland. In WOW, the state supreme court ordered the transfer of property from a federal license holder and ordered an accounting; the ongoing accounting did not affect the federal issue (interference with the license), which was tied to the transfer. In Brady, Maryland's highest court* upheld Brady's conviction but ordered a new sentencing hearing; that proceeding did not affect the federal due process rights that Brady argued were violated by a conviction without disclosure of evidence. The key to this category is that the remaining state-law proceedings do not affect the federal issue; nothing that happens eliminates the federal issue, regardless of who wins or how the state courts resolve those future issue. Brady believes his conviction violates due process; that remains alive regardless of the ultimate sentence. The radio station believes the loss of property affects its federal license; that remains alive regardless of the outcome of the accounting.

[*] Then called the Maryland Court of Appeals, changed to Maryland Supreme Court in 2023.

That is not this case. Whether the federal issue remains alive depends on what happens in state court. Imagine (as was the case when SCOTUS granted cert) ongoing state litigation to draw new maps that comply with the state constitution. If the state court approves the legislature's preferred maps, the federal issue (ISL) goes away. The state will not appeal the maps or argue they have unfettered power, because they won and so the scope of their power does not matter; the plaintiffs will appeal the maps on independent-and-adequate state constitutional grounds, but would not argue ISL because it does not help them. if the state court rejects the legislature's preferred maps, the federal issue remains alive--the state will return to NCSCt, NCSCt approves the maps, and the state challenges those maps on ISL grounds. Of course, that takes time and energy, leaving the federal issue unresolved. And that is, in fact, where the case landed: The state won on state-law grounds (partisan gerrymandering is non-justiciable) and any appeal the plaintiffs might have rests on state law, not federal law.

Thus, this case better fits the fourth category, created in Cox:

Lastly, there are those situations where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action, rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation.

That is this case. The appealing party (legislators) might prevail on nonfederal grounds (as, in fact, they did), depriving SCOTUS of the opportunity to review the federal issue; immediate reversal on the federal issue precludes further state litigation--had SCOTUS adopted ISL, the state wins without having to do anything more. And the delay or elimination of the ISL issue "seriously erode[s] federal policy" by leaving unresolved whether state legislatures can do whatever the hell they want--sure to be an issue in the coming presidential election.

I am not sure why the Chief went with # 2 rather than # 4.

Posted by Howard Wasserman on June 29, 2023 at 01:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Why "universality" better captures the scope-of-injunction problem

Everyone will be talking about the death(?) of affirmative action, but I do not have much legal to add to that conversation. So I am going to use and a few other posts to catch up on some things.

First up, Judge Hale of the W.D.Ky. declared invalid that state's ban on puberty blockers and cross-sex hormones for minors, joining district courts in Arkansas, Tennessee, and Florida. These cases trigger anew the scope-of-injunction problem-- and not well. Judge Hale issued what he called a "facial injunction" and said the following:

The Commonwealth suggests that any injunction should be limited in scope to cover only those plaintiffs who are already taking the drugs in question. (D.N. 47, PageID.514-15) But the fact “that some minors experiencing gender dysphoria may choose not to pursue the gender transition procedures covered by the Act and therefore would not be harmed by its enforcement” does not mean that a facial injunction would be overbroad. Brandt, 47 F.4th at 672; see id. (“The proper focus of the [facial] constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” (alteration in original) (quoting City of Los Angeles v. Patel, 576 U.S. 409, 418-19 (2015))). The Commonwealth notably “fail[s] to offer a more narrowly tailored injunction that would remedy Plaintiffs’ injuries,” id., and as Plaintiffs point out, it would be virtually impossible to fashion one. (See D.N. 52, PageID.1678-79) A facial injunction is therefore appropriate.

This is nonsense. An obvious narrower injunction remedies plaintiffs' injuries--the state cannot enforce the law to prevent these seven minors from continuing and/0r begin receiving treatments, as they choose. That remedies their injuries, regardless of what the state can or does do as to any other trans person who seeks or intends to seek treatment.  Protecting these plaintiffs need not help non-plaintiffs (compare an order compelling a school to return a book to the library). Nor is this a case in which the court cannot identify plaintiffs from those similarly situated. Because the trans kids sued on their own behalf (rather than through some organization or a doctor or a state asserting third-party or associational standing), we can easily identify who the injunction protects and who falls outside the injunction.

This and other cases illustrate why it has been a mistake to use "nationwide" to describe beyond-the-plaintiff injunctions. The problem never was confined to challenges to federal laws and regulations. States always could enact broad discriminatory laws and regulations simultaneously affecting large numbers of people, triggering the same issue of who an injunction protects after a court declares those laws constitutionally invalid. But no one would label this injunction "nationwide," while "statewide" adds another term and thus more confusion. That is why universality works best--it captures the idea of an injunction (improperly) extending to everyone who might be subject to enforcement of the challenged law, regardless of the breadth of that universe.

Posted by Howard Wasserman on June 29, 2023 at 11:48 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, June 28, 2023

(Guest Post) The Supreme Court Continues Its Fractured Approach to Personal Jurisdiction

The following post is by Charles "Rocky" Rhodes (South Texas) and Cassandra Robertson (Case Western), who have been blogging about Mallory v. Northfolk Southern Railway.

Studying personal jurisdiction has long been how 1L’s learn the difference between plurality and majority opinions, and, as Justice Brennan used to say, the importance of counting to five votes. With Tuesday’s decision in Mallory v. Norfolk Southern Railway, that tradition will continue!

The Supreme Court ruled in favor of the plaintiff, who relied on Pennsylvania’s corporate registration jurisdiction-by-consent statute to sue the railway company in Pennsylvania. It was the second time in a row for a personal jurisdiction plaintiff to prevail in the Supreme Court after a string of six defense rulings, suggesting that the Court is looking for a more stable equilibrium in its personal jurisdiction jurisprudence. Here a century-old case proved the key. The Court relied on its venerable 1917 holding in Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., which held that a state’s jurisdictional assertion under a similar corporate registration statute for any claim did not violate due process.

But this victory for Mallory may be short lived. Justice Alito—the necessary fifth vote for holding the Due Process Clause was not violated—indicated in his concurrence in the judgment that the Pennsylvania statute likely violated the dormant Commerce Clause. He noted Pennsylvania had no state interest in this particular case because the plaintiff did not reside in Pennsylvania when the suit was filed, the harm did not occur in Pennsylvania, and Norfolk Southern was neither at home nor incorporated in Pennsylvania. Yet these concerns leave open the potential for state legislatures to adopt a sounder jurisdictional approach for corporations, avoiding the uncertainties of the outer limits of the minimum-contacts test.

The Plurality Opinion

Justice Gorsuch authored the part-majority, part-plurality opinion. In a footnote likely to be a life preserver for 1L students (unless edited out by casebook authors!), he quickly summarized the points on which five justices agreed:

“While various separate writings accompany this opinion, it should be apparent a majority of the Court today agrees that: Norfolk Southern consented to suit in Pennsylvania. Supra, at 10–11; post, at 2 (opinion of ALITO, J.). Pennsylvania Fire therefore controls this case. Supra, at 11–12; post, at 2–4 (opinion of ALITO, J.). Pennsylvania Fire’s rule for consent-based jurisdiction has not been overruled. Supra, at 13–14; post, at 4 (opinion of ALITO, J.). International Shoe governs where a defendant has not consented to exercise of jurisdiction. Supra, at 14–15; post, at 4 (opinion of ALITO, J.). Exercising jurisdiction here is hardly unfair. Supra, at 17–20; post, at 4–5 (opinion of ALITO, J.). The federalism concerns in our due process cases have applied only when a defendant has not consented. Supra, at 21; post, at 7–8 (opinion of ALITO, J.). Nor will this Court now overrule Pennsylvania Fire. Supra, at 21–23; post, at 4 (opinion of ALITO, J.).”

But, as this summary indicates, the portion of Justice Gorsuch’s opinion that is a majority is narrow; essentially, Pennsylvania Fire controls the Due Process Clause analysis for a state imposing consent to jurisdiction as a consequence for registration and International Shoe’s minimum-contacts test controls outside that context. The Court vacated the Pennsylvania Supreme Court’s judgment that the statute was unconstitutional under the Due Process Clause and remanded to allow consideration of the railroad’s alternative argument that Pennsylvania’s statutory scheme violated the dormant Commerce Clause.

In the sections for a plurality, Justice Gorsuch hinted at a broader reconfiguration of personal jurisdiction that continued the dialogue he started in his concurrence in Ford Motor Co. v. Montana Eighth Judicial District Court. He opened with a hypothetical based on the East Palestine, Ohio train derailment, with imagined suits filed in Pennsylvania against a Virginia train conductor served while in the state and against Norfolk Southern based on its consent to jurisdiction through registration in the state. Because the Due Process Clause would not bar a suit against the conductor, the railroad, according to Justice Gorsuch, should be treated the same.

At the founding and through the time of the Fourteenth Amendment’s adoption, “a tribunal’s competence was generally constrained only by the ‘territorial limits’ of the sovereign that created it.” This meant that, in transitory actions against an individual defendant, suit could be maintained on any claim at any place the defendant could be found. Today, this jurisdictional basis is often known as “tag” jurisdiction; the Court unanimously affirmed (although in fractured opinions) its continued propriety in 1990 in Burnham v. Superior Court of California.

But, the plurality’s jurisdictional historical tale continued, the difficulty was adapting the traditional rule about transitory actions against individuals to corporate artificial persons created by law. States did so, both before and after the Fourteenth Amendment’s ratification, by adopting “statutes requiring out-of-state corporations to consent to in-state suits in exchange for the rights to exploit the local market and to receive the full range of benefits enjoyed by in-state corporations.” Although these statutes took various forms, some authorized the state to assert jurisdiction over any claim—irrespective of any relationship to the forum—against a corporation appointing an agent for service of process under a state corporate registration scheme. When a constitutional challenge to one of these statutes came before the Court in 1917, Justice Holmes’ unanimous Pennsylvania Fire opinion succinctly dismissed any due process concerns.

The plurality then explained its refusal to overrule Pennsylvania Fire. International Shoe and its progeny did not undermine Pennsylvania Fire; those cases “stake[d] out an additional road to jurisdiction” over nonconsenting out-of-state corporations but did not impact the permissibility of jurisdiction through consent. The Pennsylvania statutory scheme fell within the “variety of actions” by a defendant that may amount to a legal submission to a court’s jurisdiction. And there was no unfairness here, especially as Norfolk Southern undertook extensive and substantial in-state activities and managed more miles of track in Pennsylvania than in any other state.

Counting Votes

The four separate writings showed many of the same divisions that arose during the oral argument

Justice Jackson fully joined the plurality opinion and added an additional concurrence, focusing on the ways in which personal jurisdiction can be waived: “by explicitly or implicitly consenting to litigate future disputes in a particular State’s courts,” by “fail[ing] to follow specific procedural rules” and thus “waiving the right to object to personal jurisdiction as a consequence,” and by “voluntarily invok[ing] certain benefits from a State that are conditioned on submitting to the State’s jurisdiction.”

Justice Alito, by contrast, joined only part of Justice Gorsuch’s opinion. He did not join Part II, which largely set out the history of personal jurisdiction and registration statutes at the time of Pennsylvania Fire. He also did not join Part III-A, which set out the procedural history of Pennsylvania Fire and the Court’s decision in that case. And he did not join Part IV, which concluded that Norfolk Southern’s extensive Pennsylvania contacts supported the “fair play and substantial justice” analysis in personal jurisdiction.

Justice Alito differed most from the plurality regarding whether the state could exercise jurisdiction over a case in which the state has no “legitimate local interest.” Our amicus brief made largely the same point, as we discussed in an earlier post. However, Justice Alito’s view is that the potential lack of a state interest isn’t a personal jurisdiction/due process problem; instead, it’s a dormant Commerce Clause problem. Because the state-interest point wasn’t well developed in the record, and the Pennsylvania Supreme Court had not reached the dormant Commerce Clause issue, Justice Alito supported remanding the case for determination of that question. He expressed serious doubt that the state could hear the case, writing that he was “hard-pressed to identify any legitimate local interest that is advanced by requiring an out-of-state company to defend a suit brought by an out-of-state plaintiff on claims wholly unconnected to the forum State,” and that “even if some legitimate local interest could be identified, I am skeptical that any local benefits of the State’s assertion of jurisdiction in these circumstances could overcome the serious burdens on interstate commerce that it imposes.” The question of state interest will likely be a focal point of the proceedings on remand under the dormant Commerce Clause.

Finally, Justice Barrett dissented, joined by the unusual line-up of Roberts, Kagan, and Kavanaugh. These justices would have completely jettisoned jurisdictional consent by registration, relying predominantly on the Roberts Court’s recent decisions. Interestingly, two of the dissenting justices—Barrett and Kagan—both taught Civil Procedure before taking the bench.

The Future of Personal Jurisdiction

What does the future hold for personal jurisdiction?

First and foremost, the opinion leaves room for the states—and especially state legislatures—to adopt jurisdictional rules that reflect state policy. After Mallory, both the business-interest and plaintiffs’ constituencies have an incentive to negotiate those policies. The broad sweep of the plurality opinion creates an opening for states to return to open-ended jurisdiction based on state registration. At the same time, Justice Alito’s warning about potential Commerce Clause violations suggest that a state’s attempt to exercise jurisdiction in a case wholly unconnected with the state might be vulnerable on other grounds. Several years ago, we drafted a model consent-by-registration statute that offered a middle ground, giving rise to jurisdiction only in cases where there was a significant state interest. After the decision in Mallory, we think that the case is even stronger for the states to adopt a narrowly focused statute that explicitly sets out the consequences of registration. Such a statute would offer predictability, would avoid a significant amount of jurisdictional litigation, and would avoid the worst excesses of either too-broad or too-narrow state jurisdiction.

The case also highlights the impact of methodological divides on jurisdictional doctrine. Justice Gorsuch’s plurality opinion is predominantly originalist. Because the states had similar statutory schemes before and at the time of the ratification of the Fourteenth Amendment, and those schemes were upheld some fifty years later in Pennsylvania Fire, the Due Process Clause was not violated. The plurality largely ignores the new jurisdictional constraints announced by the Roberts Court over the last dozen years, viewing those as irrelevant when the asserted jurisdictional basis is a type of consent, a traditional form outside the minimum-contacts test. But while clothing its opinion in originalist garb, the plurality indicates a functional disagreement with the premises underlying the Roberts Court’s restrictive turn in personal jurisdiction.

In contrast, the dissent relies primarily on doctrinal arguments, reasoning from the contours of its past decisions. The dissent fears that the recent constraints on a corporation’s amenability to suit would be for naught if states could circumvent those limits by requiring corporations to consent to all-purpose jurisdiction to do business in the state. As a result, the dissent seeks to eliminate corporate registration schemes as a jurisdictional alternative.

Such interpretive divides typically lead to highly fractured decisions, which has been a problem in the past in personal jurisdiction and appears likely to be a continuing difficulty. While the Roberts Court issued a majority opinion in six of its seven prior jurisdictional rulings, those days may be coming to an end. Justice Breyer’s replacement by Justice Jackson, and Justice Gorsuch and Thomas championing an originalist approach, provide three additional voices to Justice Sotomayor’s fight against the restrictive turn in personal jurisdiction. It appears that, at least for the foreseeable future, the study of personal jurisdiction will remain the 1L subject demonstrating the importance of plurality opinions and counting votes.

Posted by Howard Wasserman on June 28, 2023 at 09:31 AM in Civil Procedure | Permalink | Comments (0)

Saturday, June 24, 2023

Florida Supreme Court displeased with federal judicial overreach

Andrew Warren wants his job as state's attorney back, following his specious and politically motivated suspension by Presidential Candidate (and not-for-several-weeks Governor) Ron DeSantis. But he also wants to avoid the constitutionally mandated process for doing so--a Senate trial--fearing (not without reasonable cause) that the Senate will rubber-stamp DeSantis's decision. He failed in federal district court, in a case I believed never should have gotten as far as it did. And he failed in the Florida Supreme Court, which denied his writ of quo warranto.

The latter was a longshot, as the court explains. Under the Florida Constitution, the Senate is the appropriate "court" for challenging suspension. The Florida Supreme Court exercises limited review to determine that the suspension is facially valid. But court never reached that much, instead denying the writ as untimely, because Warren went through five months of federal proceedings before filing in state court.

In rejecting the writ, SCoFL expressed its displeasure with the federal court and Warren for, in essence, derogating SCoFL and state institutions generally.

As to the district court, the state court said:

Inexplicably, despite having previously dismissed Petitioner’s state-law claim—a claim that challenged the facial sufficiency of the suspension order—the federal district court proceeded to reach various “conclusions” regarding the propriety of the suspension under Florida law. Indeed, the federal district court twice stated that the suspension “violated the Florida Constitution,” id. at D115, D125, and the federal district court purported to decide certain “factual issue[s],” including whether “Mr. Warren neglected his duty or was incompetent,” id. at D117. The federal district court did so even though its “jurisdiction over [Petitioner’s state-law] claim [was] barred by the Eleventh Amendment,” Pennhurst, 465 U.S. at 121, and even though “[i]t is the function of the [Florida] Senate, and never that of the Courts, to review the evidence upon which the Governor suspends an officer,” Sullivan, 52 So. 2d at 425. At one point, the federal district court challenged the Governor to “simply rescind the suspension.” Warren, 29 Fla. L. Weekly Fed. at D124. And at another point, the federal district court seemingly questioned the ability of the Florida Senate to dutifully carry out its constitutional role in suspension matters, referring to that legislative body as “heavily partisan.” Id.

I made similar points following the district court's decision--there was no reason to decide the suspension's state-law validity to decide that DeSantis had a non-pretextual state-law reason for the suspension that defeated the First Amendment claim.

Warren worsened the situation by arguing that the district court's state-law musings should have issue-preclusive effect. Rejecting the argument, the court stated that issue preclusion cannot turn a loser into a prior winner on discrete issues, while noting that the federal case is on appeal to the Eleventh Circuit and thus not final. I would add that the federal court's conclusions about the suspension were not necessary to the federal judgment, another element of claim preclusion.

Finally, the court points to, and does not dismiss, DeSantis's suggestion that Warren invoked SCoFL as a "backup plan," an unfavorable forum to which he ran late and as a last resort. It does not buy Warren's explanation--state law sets no time limit on a quo warranto application and he filed about one month after the district court dismissed that action--because it does not like the idea that he ran to federal court in the first place.

Posted by Howard Wasserman on June 24, 2023 at 09:25 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, June 22, 2023

Getting particularity right, legally and practically

Chris Geidner reports on a Northern District of Florida decision declaring invalid Florida's prohibition on Medicaid coverage for puberty blockers and cross-sex hormones. Reading the order page (declaring the regs invalid; enjoining the named defendant, Jason Weida; and extending the injunction to other officers per FRCP 65(d)(2)), Chris argues that the decision is not only about the plaintiffs, because the first point applies to the law and regulations. This is wrong as a legal matter, although not as a practical matter. It also illustrates where everyone gets the universality/particularity analysis wrong.

As a legal matter, the court's order affects four named plaintiffs--two adults, two minors. That's it. Yes, the court declared Florida's Medicaid laws and regs invalid. But courts do not make legal declarations in the abstract; they declare the rights and other legal relations of any interested party. SCOTUS reaffirmed last week (as to defendants) in Haaland v. Brackeen that a DJ "conclusively resolves '‘the legal rights of the parties.’'" That is, they declare the law and regs invalid as to the plaintiffs. Declaratory judgments are no more universal than injunctions, absent certification of a 23(b)(2) civil rights class , which plaintiffs did not seek or obtain. The court's order binds the named defendant (the secretary of the state health-care agency) and everyone else who might enforce those Florida laws against them--any attempt to enforce against these four people violates the order.

This order does not prohibit anyone bound by the injunction--Weida or other officers--from enforcing these regulations against anyone other than those four plaintiffs. They could deny to John Smith Medicaid coverage of his prescription for puberty blockers or cross-sex hormones, without violating the current court order or risking contempt. But suppose they did that. Smith would join as a plaintiff in the current action and ask the court to extend the DJ and injunction to him; because he is identically situated to the original plaintiffs, the court would quickly grant the request. Or Smith would file his own lawsuit and quickly obtain a preliminary injunction on the strength of the prior decision. Either approach produces a court order that protects Smth as a named plaintiff, such that enforcement of the regs against him violates the order and risks contempt. But it requires that additional step of making Smith a party to the litigation and bringing him under the court's protection.

As a practical matter, on the other hand, Chris is correct--Florida officials will not enforce these regs against anyone; Florida Medicaid will cover these procedures for all recipients, barring a stay or appellate reversal. But the court order, as framed, does not compel that result as a matter of law. Rather, Florida officials will cover the procedures for non-parties because declining to do so wastes everyone's time and money* by triggering the further litigation--certain to succeed--described in the prior paragraph.

[*] Plaintiffs brought this action under § 1983, so § 1988(b) authorizes attorney's fees for prevailing plaintiffs. And each time a plaintiff obtains a new or extended injunction, the state will pay the fees for that process.

Does this matter, if we end up in the same place? In my view yes, because process matters.

Posted by Howard Wasserman on June 22, 2023 at 05:50 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, June 15, 2023

Haaland: Standing, or why didn't the entire case have to come through state court

Haaland v. Brackeen rejected (7-2) a constitutional challenge to the Indian Child Welfare Act. The relevant plaintiffs were the State of Texas and three sets of adoptive, foster, or birth parents; the defendants were the Secretary of the Interior and various federal officials; the lawsuit was filed in federal district court. The Court rejected the challenge to the placement-preference provision for lack of standing, finding that an injunction or DJ as to the validity of that provision would not redress the plaintiffs' injuries; any injuries arose from the action of state judges applying ICWA and state officials enforce state-court orders, none of whom were parties to the case and none of whom were bound by any judgment. That the state officials likely would follow the federal court's opinion does not establish standing; in  music to my ears, Justice Barrett wrote "[i]t is a federal court’s judgment, not its opinion, that remedies an injury."

But the Court reached, and rejected, the merits of challenges to the entire statute under the Indian Commerce Clause and under Tenth Amendment anticommandeering to the requirements in involuntary proceedings; to placement preferences; and to certain record-keeping requirements. At least as to the latter two, the Court relied on anticommandeering's unique non-application to state courts, which must apply federal law in all cases before it as the supreme law of the land.

What I do not understand is how these plaintiffs had standing to bring a federal suit in federal district court to challenge any of these provisions on any grounds. All claims suffer the same redressability problems--the plaintiffs suffer an injury when non-party state judges apply ICWA to decide cases and non-party state officials enforce those judgments. So it seems to me this entire case should have had to come through state court--a state family court decides an adoption/placement case applying ICWA; the parents (and the State, if so inclined) argue that ICWA is constitutionally invalid and cannot be applied; the loser(s) appeal through the state system and ultimately to SCOTUS, which decides these constitutional issues in the course of reviewing a state judgment applying that law.

Posted by Howard Wasserman on June 15, 2023 at 06:34 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, June 13, 2023

JOTWELL: Bookman on Weinstein-Tull on traffic courts

The new Courts Law essay comes from Pamela Bookman (Fordham) reviewing Justin Weinstein-Tull, Traffic Courts, 112 Cal. L. Rev. ___ (forthcoming 2023), the latest article (and Courts Law review essay) to consider life in lower-level state and local courts (and outside the federal courts on which many scholars and scholarship focus).

Posted by Howard Wasserman on June 13, 2023 at 10:30 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, June 09, 2023

§ 1983 enforcement survives, for the moment

The Court decided HHC v. Talevski Thursday, seven months to the day after argument. Here is my SCOTUSBlog analysis. The Court held 7-2 (by Jackson) that Spending Clause enactments are enforceable through § 1983 and that Federal Nursing Home Reform Act ("FNHRA") can be enforced through § 1983. I suppose I understand the delay. Thomas wrote a 36-page dissent tracing the history and evolution of the Spending Clause to argue that spending enactments do not "secure" legal statutory rights, only contractual rights, otherwise such rights violate anti-commandeering. Alito (joined by Thomas) dissented to argue that FNHRA is not enforceable because Congress intended to preclude § 1983 enforcement. Gorsuch and Barrett (with the Chief) joined the majority but added short concurrences.

The title of the posts suggests the reprieve to private enforcement may be temporary. Five justices wrote various things suggesting a narrow approach to private enforcement of Spending Clause laws, if not an intent to eliminate it. Thomas made his position clear. Gorsuch's one-paragraph concurrence spoke of "issues lurking" that petitioners failed to develop--namely, the anti-commandeering concerns Thomas discussed. In other words, Gorsuch might agree with Thomas in a different-and-better-litigated case. Barrett and Roberts went out of their way to remind courts to "tread carefully before concluding that Spending Clause statutes may be enforced through §1983." And Alito believes that a combination of state law proceedings and internal grievances sufficient to preclude federal litigation.

Posted by Howard Wasserman on June 9, 2023 at 09:33 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)